2017 WI 52
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP491
COMPLETE TITLE: AllEnergy Corporation and AllEnergy Silica,
Arcadia, LLC,
Petitioners-Appellants-Petitioners,
v.
Trempealeau County Environment & Land Use
Committee,
Respondent-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 370 Wis. 2d 261, 881 N.W.2d 358
(2016 - Unpublished)
OPINION FILED: May 31, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 11, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Trempealeau
JUDGE: Elliott M. Levine
JUSTICES:
CONCURRED: ZIEGLER, J. concurs, joined by ROGGENSACK, C.J.
(opinion filed)
DISSENTED: KELLY, J. dissents, joined by GABLEMAN, J. and
R.G. BRADLEY, J.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners-appellants-petitioners, there were
briefs filed by Gary A. Van Cleve and Larkin, Hoffman, Daly and
Lindgren Ltd., Minneapolis, and oral argument by Gary A. Van
Cleve.
For the respondent-respondent, there was a brief filed by
Ronald S. Stadler, Aaron J. Graf and Mallery & Zimmerman, S.C.,
Milwaukee, and oral argument by Ronald Stadler.
An amici curiae brief was filed on behalf of CSI Sands
(Wisconsin) LTD., D/B/A Canadian Silica Industries, Superior
Silica Sands LLC, Mississippi Sand LLC, and High Country Sand
LLC by Anders B. Helquist and Weld Riley, S.C., Eau Claire.
An amici curiae brief was filed on behalf of Wisconsin
Counties Association and Wisconsin Towns Association by Richard
Manthe, Shawano.
An amici curiae brief was filed on behalf of Wisconsin
Realtors Association and Wisconsin Builders Association by
Thomas D. Larson, Madison.
2
2017 WI 52
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP491
(L.C. No. 2013CV245)
STATE OF WISCONSIN : IN SUPREME COURT
AllEnergy Corporation and AllEnergy Silica,
Arcadia, LLC,
Petitioners-Appellants-Petitioners,
FILED
v.
MAY 31, 2017
Trempealeau County Environment & Land Use
Committee, Diane M. Fremgen
Clerk of Supreme Court
Respondent-Respondent.
Review of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, J.1 This is a review of an
unpublished decision of the court of appeals affirming an order
1
Although four justices agree with the mandate of this
opinion that the decision of the court of appeals is affirmed,
only Justice Ann Walsh Bradley joins this opinion (which makes
it the opinion of two justices). Justice Annette K. Ziegler
(joined by Chief Justice Patience D. Roggensack) joins the
mandate and writes separately in concurrence. Justice Daniel
Kelly (joined by Justice Michael J. Gableman and Justice Rebecca
Grassl Bradley) dissents. This opinion is a lead opinion
because four justices do not agree with or join its reasoning.
(continued)
No. 2015AP491
of the circuit court for Trempealeau County, La Crosse County
Circuit Court Judge Elliott M. Levine, presiding.2 The order of
the circuit court affirmed the Trempealeau County Environment &
Land Use Committee's denial of the conditional use permit
application for non-metallic mineral mining submitted by
AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC
(collectively AllEnergy). The non-metallic mineral mining in
the instant case is mining, processing and transporting silica
sand used in hydraulic fracturing (fracking).
¶2 Naming the Trempealeau County Environment & Land Use
Committee as respondent, AllEnergy sought certiorari review in
the circuit court of the denial of its application for a
conditional use permit; appealed the order of the circuit court
As Justice Ann Walsh Bradley recently explained in State v.
Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann
Walsh Bradley, J., dissenting), although "the term 'lead'
opinion . . . is undefined in our Internal Operating Procedures,
its use here is consistent with past description. We have said
'that a lead opinion is one that states (and agrees with) the
mandate of a majority of the justices, but represents the
reasoning of less than a majority of the participating
justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371
Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ.,
concurring in part and dissenting in part) (citing Hoffer
Props., LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874
N.W.2d 533)).
2
AllEnergy Corp. v. Trempealeau County Env't & Land Use
Comm., No. 2015AP491, unpublished slip op. (Wis. Ct. App. May
10, 2016).
2
No. 2015AP491
to the court of appeals; and then sought review of the decision
of the court of appeals in this court.3
¶3 The issues presented in AllEnergy's brief and
addressed by the Trempealeau County Environment & Land Use
Committee's brief are the following:
I. Did the Trempealeau County Environment & Land Use
Committee, an appointed body without the power to
legislate, exceed its jurisdiction by denying a
conditional use permit based on broad legislative
concerns over the public health, safety, and
welfare?
II. Did substantial evidence in the administrative
record support the denial of a conditional use
permit for non-metallic mining?
III. Should the court adopt a new doctrine that a
conditional use permit applicant is entitled to
the permit where (A) all ordinance conditions and
standards are met and (B) additional conditions
can be adopted that address potentially-adverse
impacts from the use?4
3
Briefs were submitted in this court by amici curiae as
follows: Joint brief of CSI Sands (Wisconsin) LTD., D/B/A
Canadian Silica Industries, Superior Silica Sands LLC,
Mississippi Sand LLC, and High Country Sand LLC; Wisconsin
Realtors Association and Wisconsin Builders Association; and
Wisconsin Counties Association and Wisconsin Towns Association.
4
Brief of Petitioners-Appellants-Petitioners (AllEnergy) at
vi (emphasis added).
AllEnergy's petition for review stated the issues somewhat
differently as follows (emphasis added):
I. Does a conditional use permit ("CUP") applicant
have a property right of entitlement to issuance
of a CUP when a county zoning committee adopts 37
specific conditions of approval for a CUP, but
then denies it based on generalized quasi-
legislative concerns?
(continued)
3
No. 2015AP491
¶4 AllEnergy's statement of the third issue is premised
on AllEnergy's argument that AllEnergy satisfied, as a matter of
law, all the specific conditions in the ordinance and that the
Trempealeau County Environment & Land Use Committee cannot
require AllEnergy to satisfy "subjective," "generalized"
conditions and standards in the ordinance.
¶5 Before we address each issue in turn, we briefly state
the certiorari standard of review to provide context for the
issues and our decision.
II. Do unsubstantiated public comments on the
possible negative impacts of a non-metallic mine
constitute substantial evidence upon which to
base a CUP denial?
III. Should the court adopt a new doctrine that where
a CUP applicant has shown that all conditions and
standards, both by ordinance and as devised by
the zoning committee, have been or will be met,
the applicant is entitled to the issuance of the
permit?
IV. Did [the Environment & Land Use Committee] exceed
its jurisdiction by denying a CUP based upon
generalized concerns, reflecting the exercise of
policy-based, quasi-legislative authority by a
committee whose members are appointed, not
elected?
V. In addition to violating the judicial notice
statute, did it violate the due process and equal
protection rights of the CUP applicant for the
courts below to refuse to take mandatory judicial
notice of certain governmental documents?
This court's order granting AllEnergy's petition for review
limited review to issues II, III, and IV, above.
4
No. 2015AP491
¶6 The first two issues stated above relate to certiorari
review of the Trempealeau County Environment & Land Use
Committee's decision denying AllEnergy a conditional use permit.5
A person aggrieved by the denial of a conditional use permit may
commence an action seeking the remedy available by certiorari.
Wis. Stat. § 59.694(10) (2013-14).6
¶7 In the instant certiorari review, the decision of the
Trempealeau County Environment & Land Use Committee is accorded
a presumption of correctness and validity.7 Certiorari review is
5
See State ex rel. Skelly Oil Co. v. Common Council, City
of Delafield, 58 Wis. 2d 695, 700-701, 207 N.W.2d 585 (1973)
(footnote omitted):
Conditional uses or as they are sometimes referred to,
special exceptions uses, enjoy acceptance as a valid
and successful tool of municipal planning . . . .[A]s
flexibility devices, which are designed to cope with
situations where a particular use, although not
inherently inconsistent with the use classification of
a particular zone, [conditional uses] may well create
special problems and hazards if allowed to develop and
locate as a matter of right in [a] particular zone.
6
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
"Certiorari is used to test the validity of decisions made
by administrative or quasi-judicial bodies." Acevedo v. City of
Kenosha, 2011 WI App 10, ¶8, 331 Wis. 2d 218, 793 N.W.2d 500.
7
See, e.g., Lamar Cent. Outdoor, Inc. v. Bd. of Zoning
Appeals of City of Milwaukee, 2005 WI 117, ¶16, 284 Wis. 2d 1,
700 N.W.2d 87; Edward Kraemer & Sons, Inc. v. Sauk Cty. Bd. of
Adjustment, 183 Wis. 2d 1, 8, 515 N.W.2d 256 (1994); Sills v.
Walworth Cty. Land Mgt. Comm., 2002 WI App 111, ¶6, 254
Wis. 2d 538, 648 N.W.2d 878.
5
No. 2015AP491
limited to whether the Trempealeau County Environment & Land Use
Committee:
1. Kept within its jurisdiction;
2. Proceeded on a correct theory of law;
3. Acted in an arbitrary, oppressive, or unreasonable
manner that represented its will and not its judgment;
and
4. Might reasonably make the order or determination in
question based on evidence.8
¶8 AllEnergy's focus——and therefore our focus and that of
the circuit court and court of appeals——is on the first and
fourth inquiries on certiorari review. Nevertheless, we
recognize that AllEnergy sometimes seems to fuse its arguments
on the first and fourth inquiries in a certiorari review with
the third inquiry, namely whether the Trempealeau County
Environment & Land Use Committee acted in an arbitrary,
oppressive, or unreasonable manner that represented its will,
not its judgment. Our discussion of the first and fourth
inquiries demonstrates that the determination of the Committee
was not arbitrary, oppressive, or unreasonable: The Committee
8
Oneida Seven Generations Corp. v. City of Green Bay, 2015
WI 50, ¶41, 362 Wis. 2d 290, 865 N.W.2d 162 (citing Ottman v.
Town of Primrose, 201 WI 18, ¶35, 332 Wis. 2d 3, 796
N.W.2d 411).
In challenging whether the evidence was such that the
Trempealeau County Environment & Land Use Committee might
reasonably make the determination in question, courts apply the
substantial evidence test. See Part III, infra.
6
No. 2015AP491
addressed AllEnergy's arguments; the Committee addressed the
provisions of the county's ordinance and its decision was the
result of deliberation and judgment exercised within the range
of discretion accorded it in the ordinance; and the Committee's
determination was reasonable, had a rational basis, and was
supported by substantial evidence.9
¶9 On certiorari, this court reviews the record of the
Trempealeau County Environment & Land Use Committee, rather than
the judgment or findings of the circuit court or the decision of
the court of appeals.10 We have undertaken an independent review
of the Committee's record but have benefitted from the court of
appeals' comprehensive review.
9
A determination of a local governmental entity represents
its will and not its judgment when its action is "arbitrary,
oppressive, or unreasonable." Snyder v. Waukesha Cty. Zoning
Bd. of Adj., 74 Wis. 2d 468, 475-76, 247 N.W.2d 98 (1976) (An
action is "arbitrary o[r] capricious if it is unreasonable or
without a rational basis."); see also Olson v. Rothwell, 28
Wis. 2d 233, 239, 137 N.W.2d 86 (1965) ("Arbitrary or capricious
action on the part of an administrative agency occurs when it
can be said that such action is unreasonable or does not have a
rational basis. . . . and [is] not the result of the 'winnowing
and sifting' process.") (internal citations omitted); State ex
rel. Harris v. Annuity & Pension Bd., Emp. Ret. Sys. of City of
Milwaukee, 87 Wis. 2d 646, 651–52, 275 N.W.2d 668, 671 (1979)
(the fourth certiorari criterion, whether the evidence was such
that the governmental entity might reasonably make the order
based on evidence, controls the third criterion); see also
Williams v. Housing Auth. of City of Milwaukee, 2010 WI App 14,
¶10, 323 Wis. 2d 179, 779 N.W.2d 185 (a challenge under criteria
three and four of a certiorari review requires a court to
determine whether the decision is founded on insufficient
evidence).
10
Oneida Seven Generations Corp., 362 Wis. 2d 290, ¶42.
7
No. 2015AP491
¶10 For the reasons set forth, we conclude as follows:
I. The Trempealeau County Environment & Land Use
Committee applied the factors and considerations set
forth in the applicable ordinance and thus kept within
its jurisdiction in denying a conditional use permit
to AllEnergy.
II. There is substantial evidence in the record to support
the Trempealeau County Environment & Land Use
Committee's decision denying AllEnergy's application
for a conditional use permit.
III. The court will not overturn settled law governing
review of a grant or denial of a conditional use
permit. The court does not adopt 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.
¶11 Part I describes the proposed project for which
AllEnergy sought a conditional use permit. In Parts II, III,
and IV, we address each issue stated above. Issues I and II
require a fact-intensive analysis to determine whether the
Trempealeau County Environment & Land Use Committee kept within
its jurisdiction and whether substantial evidence exists to
support the Committee's denial of AllEnergy's application for a
8
No. 2015AP491
conditional use permit; the facts are set forth in Parts II and
III.
I
¶12 Trempealeau County is home to several frac sand mines.
Trempealeau County's rolling and bucolic hills hide vast
reserves of silica sand. Silica sand is often called "frac
sand," in reference to the material's use as a proppant in
hydraulic fracturing, that is, in "fracking." Fracking is a
process used to extract previously inaccessible buried reserves
of oil and natural gas. The process involves drilling an oil or
natural gas well and using explosives to create cracks or
fissures in the rock or subsurface material. A mixture of
water, chemicals, and frac sand is injected to expand and hold
open the cracks or fissures created by the explosives. The oil
or natural gas reserves leach out of the cracks and fissures and
into the wells.11
¶13 In May 2013, AllEnergy located a site in the Town of
Arcadia in Trempealeau County for a frac sand mine. The site is
located in an Exclusive Agriculture 2 (EA-2) zoning district,
which has the stated purpose to "preserve[] class I, II and III
soils and additional irrigated farmland from scattered
residential developments that would threaten the future of
11
For a more in-depth discussion of fracking and frac sand,
see Wisconsin Department of Natural Resources, Industrial Sand
Mining in Wisconsin, June 2016,
http://dnr.wi.gov/topic/EIA/documents/ISMSA/ISMSA.pdf (last
visited May 22, 2017).
9
No. 2015AP491
agriculture . . ." and "to preserve woodlands, wetlands, natural
areas and the rural atmosphere of the County."12
¶14 Because non-metallic mineral mining, including frac
sand mining, requires a conditional use permit in Trempealeau
County, AllEnergy filed an application for such a permit and a
non-metallic mineral mining reclamation plan with the County on
August 2, 2013. The application describes a 550-acre project,
which includes a 265-acre mine site, a processing plant, a
conveyor system (to move sand and other materials around the
facility), storm water retention ponds, and a rail spur
connecting the facility to a Canadian Northern rail line.
¶15 AllEnergy's application also explains that it had
received "favorable determinations" from various state and
federal agencies regarding wetland-fill, storm water discharge,
and highway-related permits.
¶16 Trempealeau County's Department of Land Management
initially received the application and referred it to an
engineering firm for third-party review. In response to the
engineering firm's concerns, AllEnergy made changes to its plan.
12
See Trempealeau County Zoning Ordinance § 2.03(2).
10
No. 2015AP491
On August 27, 2013, the Department of Land Management deemed the
plan "complete."13
¶17 Tasked with deciding whether a sand mine should be
permitted in the EA-2 zoning district, the Trempealeau County
Environment & Land Use Committee held a public hearing on
AllEnergy's application on October 9, 2013. During the hearing,
AllEnergy's representatives and its experts gave presentations
on the project.
¶18 After AllEnergy's presentations, the hearing was
opened to public testimony. Thirteen people testified against
permitting the proposed non-metallic mine and two supported the
mine. In addition, letters and e-mails were read into the
record. According to the circuit court, "[a]pproximately 368
people went on record as being in favor of granting the
conditional use permit, with the vast majority registering their
support via form letter with little or no comment, including
approximately 51 people who are residents of another state.
Approximately 38 people went on record as being opposed to
granting the conditional use permit, the majority of whom
provided a reason for their position."
13
The Department of Land Management deemed the application
complete days before the County adopted a one-year moratorium on
permitting new frac sand mines on August 30 (effective September
1, 2013). The County adopted the moratorium in order to study
the health and environmental effects of the recent boom in frac
sand mining. Because AllEnergy submitted a complete application
before September 1, the moratorium did not apply to AllEnergy.
11
No. 2015AP491
¶19 Generally, those favoring granting the conditional use
permit cited increased employment. Those opposed cited
environmental, health, and cultural concerns.
¶20 A lengthy discussion ensued between AllEnergy's
representatives and the members of the Trempealeau County
Environment & Land Use Committee regarding the concerns
expressed by the public about the project.
¶21 During the public hearing, the Trempealeau County
Environment & Land Use Committee reviewed the provisions of the
County ordinance concerning conditional use permits, non-
metallic mineral mining permits, and non-metallic mine
reclamation. See Trempealeau County Zoning Ordinance chs. 10,
13, 20. The substance of these ordinance provisions will be
discussed below. For now, it suffices to say that the Committee
discussed many of the factors in the ordinance and that
AllEnergy was involved in this discussion.
¶22 After reviewing the ordinance provisions governing its
decision, the Trempealeau County Environment & Land Use
Committee discussed what conditions would have to be imposed on
AllEnergy's conditional use permit before it would vote to grant
the permit. After extensive discussion, the Committee voted 7-1
in favor of imposing numerous conditions on the conditional use
permit.
¶23 After deciding on the approved conditions, the
Trempealeau County Environment & Land Use Committee voted 5-3 to
deny AllEnergy's application for a conditional use permit even
with those conditions in place. The five members of the
12
No. 2015AP491
Committee who voted to deny the application stated their reasons
for doing so on the record. The Committee also prepared a
written summary of its decision pursuant to Trempealeau County
Zoning Ordinance § 13.03(4).14
II
¶24 AllEnergy's first challenge is that the Trempealeau
County Environment & Land Use Committee did not keep within its
jurisdiction when denying a conditional use permit to AllEnergy
when it based its denial on "legislative concerns implicating
public health, safety, and welfare."
¶25 To support this challenge, AllEnergy makes three
arguments.
¶26 AllEnergy argues that the Trempealeau County Board of
Supervisors decided, as a legislative matter in enacting the
ordinance, that the public health, safety, and welfare may be
served by allowing non-metallic mineral mining in an Exclusive
Agriculture 2 (EA-2) zoning district. AllEnergy reasons that
the Trempealeau County Environment & Land Use Committee did not
keep within its jurisdiction in denying AllEnergy a conditional
use permit because the designation of a use in a zoning code as
14
Under our cases, no requirement exists that a written
decision be prepared, but, for meaningful review, a reviewing
court must be able to discern from the record or the transcript
of the proceedings before the board the reasons for the denial
of the application for a conditional use permit. See Lamar
Cent. Outdoor, 284 Wis. 2d 1, ¶¶31-35.
13
No. 2015AP491
a conditional use by the Board of Supervisors conclusively
establishes that the use is in the public interest.
¶27 AllEnergy also argues that because the Trempealeau
County Board of Supervisors included non-metallic mineral mining
as a conditional use within an EA-2 zoning district, such a use
is presumptively valid and the proper inquiry for the
Trempealeau County Environment & Land Use Committee is whether
the conditional use at the particular location carries impacts
greater than the adverse impacts ordinarily associated with that
use. AllEnergy asserts further that it is entitled to a
conditional use permit as of right because no evidence in the
record demonstrates that the proposed non-metallic mineral
mining site at the particular location carries impacts greater
than the adverse impacts ordinarily associated with that use.15
¶28 AllEnergy further bolsters its position that the
Trempealeau County Environment & Land Use Committee did not keep
within its jurisdiction by arguing that the guideline of "public
health, safety or general welfare" is too general to supply the
necessary guidance for action by the Committee. In making this
argument AllEnergy does not refer to the constitution in its
briefs, but its argument is a constitutional one attacking the
ordinance as an invalid delegation of power to the Committee.
15
AllEnergy relies on Maryland cases adopting this
standard. See, e.g., Mossburg v. Montgomery Cty., 666 A.2d 1253
(Md. Ct. App. 1995).
14
No. 2015AP491
¶29 At oral argument, Justice Ziegler asked whether
AllEnergy was challenging the constitutionality of the
ordinance. Counsel for AllEnergy replied that the court stopped
him from making such an argument.
¶30 The dialogue at oral argument proceeded as follows:
Justice Ziegler: I'm curious, it doesn't seem that
you have specifically made constitutional arguments
that this is an unconstitutional delegation of
authority or that this ordinance is unconstitutional
either facially or as applied, or any other
constitutional claims. I'm curious why not.
AllEnergy's counsel: Because this court told me I
couldn't make them. That was one of the issues that
we raised in our petition for review and the court
granted review on the three issues that are stated in
its order granting the petition. We did raise a
constitutional issue, but it is not before this court.
¶31 Justice Ziegler and counsel, however, spoke past each
other. AllEnergy's response to Justice Ziegler should have been
that it did not raise an unconstitutional delegation of
authority claim or make any facial or as-applied constitutional
claim in its petition for review. See ¶3 n.3, supra (describing
AllEnergy's statement of issues in its petition for review).
¶32 AllEnergy's petition for review did raise a
constitutional issue that the court did not address in granting
review. AllEnergy's petition for review raised a violation of
due process and equal protection relating to judicial notice of
certain documents. See ¶3 n.3, supra. This was not the
constitutional argument to which Justice Ziegler was referring.
¶33 Undeniably, AllEnergy's brief attacks the
constitutionality of the Trempealeau County ordinance, relying
15
No. 2015AP491
throughout its brief (in pages too numerous to cite in its Table
of Authorities) on State ex rel. Humble Oil & Refining Co. v.
Wahner, 25 Wis. 2d 1, 130 N.W.2d 304 (1964), a case successfully
challenging the constitutionality of an ordinance on the grounds
of invalid standards in the ordinance.
¶34 Trempealeau County's brief correctly objects to
AllEnergy's diverging into a constitutional argument in its
discussion of whether the Trempealeau County Environment & Land
Use Committee exceeded its jurisdiction.
¶35 We disagree with the positions that AllEnergy urges.
We conclude:
(A) By adhering to the Trempealeau County ordinance, the
Trempealeau County Environment & Land Use Committee
kept within its jurisdiction in denying AllEnergy's
application for a conditional use permit in the
instant case.
¶36 AllEnergy supports its challenge to the Committee's
jurisdiction by three arguments. As to these three arguments,
we conclude:
(B) Designation of non-metallic mineral mining as a
conditional use in the zoning code does not
conclusively establish that the use is in the public
interest.
(C) The proper inquiry is not whether the proposed
conditional use carries impacts greater than the
adverse impacts ordinarily associated with that use,
and
16
No. 2015AP491
(D) The guidelines in the Trempealeau County ordinance,
including the requirement that the Committee consider
"public health, safety or general welfare," are
constitutional.
A
¶37 To determine whether the Trempealeau County
Environment & Land Use Committee kept within its jurisdiction,
we compare the terms of the ordinance to the Committee's action.
The "kept within its jurisdiction" inquiry on certiorari review
considers whether the applicable ordinance grants the
Trempealeau County Environment & Land Use Committee the
authority to take the action it took. The Trempealeau County
Environment & Land Use Committee, as an agency created by the
County's legislative body, has those powers that are expressly
conferred or that are necessarily implied by the ordinances
under which it operates.16
¶38 The Trempealeau County Zoning Ordinance enacted by the
Trempealeau County Board of Supervisors lists various criteria
the Trempealeau County Environment & Land Use Committee is to
16
Kimberly-Clark Corp. v. Pub. Serv. Comm'n of Wis., 110
Wis. 2d 455, 461–62, 329 N.W.2d 143 (1983) (citing Elroy-
Kendall-Wilton Schs. v. Coop. Educ. Serv., 102 Wis. 2d 274, 278,
306 N.W.2d 89 (Ct. App. 1981)). See also Wis. Citizens
Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶14, 270
Wis. 2d 318, 334–35, 677 N.W.2d 612 ("It is axiomatic that
because the legislature creates administrative agencies as part
of the executive branch, such agencies have only those powers
which are expressly conferred or which are necessarily implied
by the statutes under which it operates.") (internal quotation
marks omitted).
17
No. 2015AP491
consider in deciding whether to grant or deny an application for
a conditional use permit.
¶39 The ordinance requires the Trempealeau County
Environment & Land Use Committee to "review each conditional use
permit application for compliance with all requirements
applicable to that specific use and to all other relevant
provisions of this Ordinance." The ordinance specifically
directs the Committee to approve a conditional use permit only
if it determines that "the proposed use at the proposed location
will not be contrary to the public interest and will not be
detrimental or injurious to the public health, public safety, or
character of the surrounding area." Trempealeau County Zoning
Ordinance § 10.04(5)(a).
¶40 The Trempealeau County Zoning Ordinance provides 16
other factors to guide the Trempealeau County Environment & Land
Use Committee's inquiry in its decision-making function
regarding a conditional use permit, including:
1. Whether the proposed project will adversely affect
property in the area.
2. Whether the proposed use is similar to other uses
in the area.
3. Whether the proposed project is consistent with
adopted Trempealeau County plans or any officially
adopted town plan.
. . . .
7. Whether the proposed use creates noise, odor, or
dust.
. . . .
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No. 2015AP491
11. Provision for proper surface water drainage.
. . . .
13. Whether the proposed project creates excessive
exterior lighting glare or spillover onto neighboring
properties.
14. Whether the proposed project leads to a change in
the natural character of the area through the removal
of natural vegetation or altering of the topography.
15. Whether the proposed project would adversely
affect the natural beauty of the area.
16. Whether the proposed project would adversely
affect any historic or archeological sites.
Trempealeau County Zoning Ordinance § 10.04(5)(b).
¶41 Moreover, the Trempealeau County Environment & Land
Use Committee is not limited to considering the factors
specified in the ordinance. It may consider "additional factors
as are deemed by it to be relevant to its decision making
process . . . ." Trempealeau County Zoning Ordinance
§ 10.04(5)(b). The Committee did not rely on this latter
provision.
¶42 In addition to the criteria governing the granting of
conditional use permits stated above, additional considerations
for authorizing non-metallic mineral mining are set forth in
chapter 13 of the Trempealeau County Zoning Ordinance. The
Trempealeau County Environment & Land Use Committee is required
to analyze proposals for non-metallic mineral mining "in light
of the County's interest in providing for the wise use of the
natural resources of the county, aesthetic implications of the
siting of such a mine at a given location and the impacts of
19
No. 2015AP491
such a mining operation on the general health, safety and
welfare of the public." Trempealeau County Zoning Ordinance
§ 13.01.
¶43 The zoning ordinance governing non-metallic mineral
mining sets forth another eight factors the Trempealeau County
Environment & Land Use Committee shall consider, "among other
factors," when considering an application for a non-metallic
mineral mine permit:
(a) When considering an application for a non-metallic
mineral mine permit, the County shall consider, among
other factors, the following: the effect or impact of
the proposed operation upon; (1) public
infrastructure, including but not limited to streets
and highways, schools and other public facilities; (2)
present and proposed uses of land in the vicinity of
the proposed operation; (3) surface water drainage,
water quality and supply; (4) soil erosion; (5)
aesthetics, including but not limited to scenic beauty
and the conservation of natural resources of
outstanding quality or uniqueness; (6) the market
value of lands in the vicinity of the proposed
operation; (7) the physical practicality of
reclamation of the site after the operation has been
concluded; and (8) the public interest from the
standpoints of smoke, dust, noxious or toxic gases and
odors, noise, vibration, blasting and the operation of
heavy machinery and equipment.
Trempealeau County Zoning Ordinance § 13.03(3)(a).
¶44 The ordinance also requires the Committee to determine
whether the proposed non-metallic mining operation is an
appropriate land use at the site in question, including the
ability of the operator to avoid harm to the legitimate
interests of properties in the vicinity of the proposed
operation, as follows:
20
No. 2015AP491
(b) In order to grant a conditional use permit for
non-metallic mineral mining, the County shall find
that the proposed operation is an appropriate land use
at the site in question, based upon consideration of
such factors as: existence of non-metallic mineral
deposits; proximity of site to transportation
facilities and to markets; and the ability of the
operator to avoid harm to the public health, safety
and welfare and to the legitimate interests of
properties in the vicinity of the proposed operation.
Trempealeau County Zoning Ordinance § 13.03(3)(b).
¶45 The ordinance acknowledges, however, despite the
extensive criteria outlined above, that it is "impossible to
prescribe the criteria upon which such a permit may be granted
in each and every case." Trempealeau County Zoning Ordinance
§ 13.01.
¶46 In determining whether to grant AllEnergy a
conditional use permit, the Trempealeau County Environment &
Land Use Committee considered and applied the criteria set forth
in the ordinance.
¶47 Each member of the Trempealeau County Environment &
Land Use Committee who voted against granting AllEnergy's
application stated his or her reasons as follows:
Committee member Vold: The reason I thought it was an
attempt to [negate] the moratorium was that——I wasn't
here for the moratorium but I read it. I thought that
the booklet was quite incomplete, there was too many
unanswered questions in the application process and I
felt there was more questions than there were answers.
Committee member Zeglin: I too agree that the plan
seemed to be rushed; it was revised after the third
party review. Things should have completed before
that and it leads one to wonder how many times it may
be revised again. The lack of a reclamation plan
provided in the initial plan. That should have been
21
No. 2015AP491
done initially. I have numerous environmental
concerns about the significant wetlands in the area,
the river at this point historically was and is
constantly changing it is very hard to plan anything
on a long range basis. I'm very concerned with the
water table in the area——it is very high. I haven't
been convinced that it will not be disturbed. Virg
you can add the river constantly floods, changes
course.
Committee member Brandt: My reasons were wetland
location is too close to sensitive water and wildlife
resources and the inability of the applicant to
mitigate those concerns to my satisfaction. Um, the
possibility of possible significant danger to ground
water, by processes involved in mining and processing,
and the high capacity well. Number 3 is the
significant change to the landscape and to the local
cultural . . . and social conditions. Um, and the
other issues that had been brought up by staff and the
public included the reclamation plan.
Committee member Patzner: Well, I represent the Farm
Service Agency and I'm for agriculture. Agriculture
has a history of bringing stability and jobs to our
local economy, where sand mines have a history of boom
or bust on the local economy, therefore destroying
good productive agricultural land is not a wise
decision. We don't want to destroy our outdoor
recreation potential, like hunting, biking and other
activities that attract visitors, retirees and people
that love scenic beauty who are close to work and live
here. There are health concerns with mining so we
need to protect our residents.
Committee member Bawek: Based on information given as
referenced and my own findings, along with public
concerns given at this meeting, this siting does not
seem to be in the best interest of our citizens nor in
the best use of our natural resources of Trempealeau
County. Soil around and in the site bring into
question the potential for water problems. Trout Run
Creek and the close proximity to the Trempealeau River
deem this site as poor. The potential loss of some
unique resources for both ourselves and future
generations comes into question. That's it.
22
No. 2015AP491
¶48 It is evident that the Trempealeau County Environment
& Land Use Committee exercised the powers conferred by the
ordinance. It considered factors set forth in the ordinance for
granting a conditional use permit. These factors included the
impact of AllEnergy's mine on the general health, safety, and
welfare of the public; the wise use of the county's material
resources; the aesthetic implications of the siting of the mine;
and the adverse effects of the mine on the environment
(including water quality, ground water, and wetlands), scenic
beauty, wildlife, and recreational opportunities. After
considering these factors, the Committee determined that
AllEnergy's application for a conditional use permit should be
denied.
¶49 Because the Trempealeau County Environment & Land Use
Committee considered the factors the Trempealeau County Board of
Supervisors directed the Committee to consider, we conclude that
the Committee kept within its jurisdiction.
B
¶50 Our case law has not accepted what AllEnergy advocates
as a new doctrine in Wisconsin, namely that a legislative
listing of a conditional use equates to a legislative
determination that the use is in the public interest. AllEnergy
urges the court to apply this doctrine and hold that the
Trempealeau County Environment & Land Use Committee did not keep
within its jurisdiction when it denied a conditional use permit
for non-metallic mineral mining, a conditional use listed in the
ordinance.
23
No. 2015AP491
¶51 In Edward Kraemer & Sons, Inc. v. Sauk County Board of
Adjustment, 183 Wis. 2d 1, 7, 16-17, 515 N.W.2d 256 (1994), the
court declared that the court of appeals erred in believing
"that the mineral extraction permit had to be granted and if
conditions were necessary to ensure compliance with the
ordinance, the Board was obligated to fashion them."
¶52 Indeed, the Kraemer court concluded that conditional
uses may be authorized pursuant to the ordinance, but they are
not uses as of right. They are allowed only if approved by the
appropriate local governmental authority.17
¶53 In Delta Biological Resources, Inc. v. Board of Zoning
Appeals of the City of Milwaukee, 160 Wis. 2d 905, 912, 467
N.W.2d 164 (Wis. App. 1991), the court of appeals emphasized:
"[T]he presumption that the conditional use serves the public
interest[ ] does not exist in Wisconsin. . . . The zoning
ordinance allows certain uses, provided certain conditions are
met. These conditions are not presumed to be met either by
judicial fiat or by the terms of the ordinance . . . ."18
17
See also Town of Rhine v. Bizzell, 2008 WI 76, ¶¶55-57,
311 Wis. 2d 1, 751 N.W.2d 780 (quoting Primeco Pers. Commc'ns,
L.P. v. City of Mequon, 242 F. Supp. 2d 567, 576 (E.D. Wis.
2003)).
18
Delta Biological's argument, which the court of appeals
dismissed, was that "a presumption arises that [a conditional]
use serves the public interest from the fact that the
legislature permits it, and the special use itself, therefore,
presumes a legislative determination that a public need for the
use exists." Delta Biological Res., Inc. v. Bd. of Zoning
Appeals of the City of Milwaukee, 160 Wis. 2d 905, 911-12, 467
N.W.2d 164 (Wis. App. 1991).
24
No. 2015AP491
¶54 In Wisconsin, and in many states, a conditional use is
one that has been legislatively determined to be compatible in a
particular area, not a use that is always compatible at a
specific site within that area. In these states, the decision
whether to grant a conditional use permit is discretionary. The
relevant entity determines whether a particular site will
accommodate a proposed particular use. In other states,
decision makers have less discretion on requests for a
conditional use permit.19
¶55 Thus, our precedent dictates that no presumption
exists that a conditional use is ipso facto consistent with the
public interest or that a conditional use is a use as of right
at a particular site within an area zoned to permit that
conditional use.20 No compelling reason has been given to
justify deviating from Wisconsin precedent and eliminating site-
specific flexibility in local zoning matters.
C
19
See Daniel R. Mandelker & Allan Wolk, Land Use Law § 6.53
(6th ed. 2016); 2 Patricia E. Salkin, American Law of Zoning
§§ 14:1, 14:6 (6th ed. 2016); Rathkopf's The Law of Zoning and
Planning §§ 60:5, 60:9, 60:10, 61:5-:8, 61:34-:38 (2016).
20
"The principle of stare decisis applies to published
decisions of the court of appeals, and stare decisis requires us
to follow court of appeals precedent unless a compelling reason
exists to overrule it." Wenke v. Gehl Co., 2004 WI 103, ¶21,
274 Wis. 2d 220, 682 N.W.2d 405 (citations omitted). See also
State v. Ziegler, 2012 WI 73, ¶114, 342 Wis. 2d 256, 816
N.W.2d 238; Wis. Stat. § 752.41(2) ("Officially published
opinions of the court of appeals shall have statewide
precedential effect.").
25
No. 2015AP491
¶56 No Wisconsin case has concluded that the proper
inquiry for a local government entity in considering an
application for a conditional use permit is whether the
conditional use carries adverse impacts greater than the adverse
impacts ordinarily associated with that use. This approach does
not comport with precedent, and no compelling reason has been
given to justify deviating from precedent.
D
¶57 AllEnergy bolsters its argument that the Trempealeau
County Environment & Land Use Committee did not keep within its
jurisdiction in denying AllEnergy's application for a
conditional use permit with the contention that the provisions
of the Trempealeau County ordinance impermissibly require the
Committee to look at "legislative considerations of public
health, safety and welfare." According to AllEnergy, the
Committee can consider only objective factors, not public
interest factors.
¶58 It appears that AllEnergy is trying to shoehorn a
constitutional challenge into the "exceeds jurisdiction" aspect
of certiorari review without explicitly saying so. See ¶¶29-33,
supra.
¶59 We understand AllEnergy to be challenging the
Trempealeau County Ordinance on the ground that its standards
are unconstitutionally vague and do not guide the Trempealeau
County Environment & Land Use Committee's decision-making
26
No. 2015AP491
process.21 We are not persuaded by AllEnergy's implied
constitutional argument.
¶60 To begin, we emphasize our role in determining the
constitutionality of an ordinance. An ordinance is presumed
valid. It must be liberally construed in favor of the decision
rendered by the local governmental entity.22 A party challenging
the constitutionality of an ordinance bears a heavy burden to
show that the ordinance is unconstitutional beyond a reasonable
doubt:
The role of courts in zoning matters is limited
because zoning is a legislative function. An
ordinance is presumed valid and must be liberally
construed in favor of the municipality. The party
challenging the constitutionality of an ordinance
bears a heavy burden. In Wisconsin, "an ordinance
will be held constitutional unless the contrary is
shown beyond a reasonable doubt, and the ordinance is
entitled to every presumption in favor of its
validity."
Town of Rhine v. Bizzell, 2008 WI 76, ¶26, 311 Wis. 2d 1, 751
N.W.2d 78 (citations omitted).
¶61 Edward Kraemer & Sons, Inc. v. Sauk County Board of
Adjustment, 183 Wis. 2d 1, 515 N.W.2d 256 (1994), illustrates an
ordinance permissibly requiring a zoning entity to consider
public interest factors in issuing a conditional use permit.
21
"When an ordinance vests discretionary power in
administrative officials it must prescribe standards to guide
their action." State ex rel. Humble Oil & Refining Co. v.
Wahner, 25 Wis. 2d 1, 7, 130 N.W.2d 304 (1964).
22
Bizzell, 311 Wis. 2d 1, ¶26 (citing State ex rel. Am. Oil
Co. v. Bessent, 27 Wis. 2d 537, 546, 135 N.W.2d 317 (1965)).
27
No. 2015AP491
¶62 In Kraemer, the Sauk County Board of Adjustment denied
an application for a conditional use permit to extract minerals
because of concern that the project would harm the Baraboo
Bluffs, "an important natural resource." Kraemer, 183
Wis. 2d at 11. The court explained that, under the ordinance
governing the granting of a special exception permit for mineral
extraction,23 the Board must consider "the ability of the
operation . . . to avoid harm to the public health, safety and
welfare and to the legitimate interests of nearby properties."
Kraemer, 183 Wis. 2d at 6.
¶63 The petitioner, Edward Kraemer & Sons, argued that the
standards in the ordinance are not sufficiently specific to
withstand attack on the grounds that they constitute an
unconstitutional delegation of legislative authority. Kraemer,
183 Wis. 2d at 13.
¶64 The Kraemer court upheld the constitutionality of the
Sauk County ordinance's standard of public health, safety, and
welfare as permissible criteria for the Board to consider in
determining whether to grant a conditional use permit, stating:
[T]he "public health, safety and welfare" standard[ ]
is a general standard that provides the Board with
flexibility and discretion to consider how a proposed
special exception could affect the public welfare.
The standard allows the Board to consider potential
harm to individuals living near the proposed mineral
23
The phrase "special exception permit" has been used
interchangeably with "conditional use permit." State ex rel.
Skelly Oil Co. v. City of Delafield, 58 Wis. 2d 695, 700, 207
N.W.2d 585 (1973).
28
No. 2015AP491
extraction site, including exposure to health hazards
from the dust and threats to safety posed by blasting.
The public health, safety and welfare standard is also
broad enough to enable the Board to consider the
generalized effects on the public welfare that
concerned the Board in this case——harm to the public
that would result from partial destruction of a
natural area that both permit supporters and opponents
agree is of great geological importance.
Kraemer, 183 Wis. 2d at 11.
¶65 The Kraemer court, 183 Wis. 2d 1, 14, citing 3 Edward
H. Ziegler, Rathkopf's The Law of Zoning and Planning § 41.11 at
41-49 (4th ed. 1993), further declared that these "generalized
standards are acceptable in most jurisdictions." The mere fact
that the "standards are general in nature does not impair the
validity of these portions of the ordinance." Kraemer, 183
Wis. 2d 1, 14-15. According to the Kraemer court, 183
Wis. 2d 1, 14 (quoting Rathkopf's § 41.11 at 41-49), the
ordinance's general standards served a beneficial purpose:
The purpose of the special exception-conditional use
technique is to confer a degree of flexibility in the
land use regulations. This would be lost if overly
detailed standards covering each specific situation in
which the use is to be granted or, conversely, each
situation in which it is to be denied, were required
to be placed in the ordinance.
29
No. 2015AP491
¶66 The Kraemer court ultimately ruled that the standards
in the Sauk County ordinance were specific enough to guide the
action of the Board. Kraemer, 183 Wis. 2d at 11-12.24
¶67 AllEnergy calls on the court to overrule Kraemer and
to be guided instead by State ex rel. Humble Oil & Refining Co.
v. Wahner, 25 Wis. 2d 1, 130 N.W.2d 304 (1964). The reference
to Humble Oil is unavailing.
¶68 In Humble Oil, a town's zoning ordinance classified
gas stations as conditional uses. Gas stations were permitted
as a conditional use in a commercial zone only if approved by
the zoning board of appeals. The only "guideline" in the
ordinance provided that "in interpreting and applying the
provisions of this ordinance they shall be held to be the
minimum requirements for the promotion of the public health,
safety, convenience, prosperity or general welfare . . . ."
Humble Oil, 25 Wis. 2d at 7.
¶69 The Humble Oil court concluded that this "guideline"
does not prescribe adequate standards to govern the board in its
disposition of a request to build a filling station. The court
characterized the "guideline" as a listing of factors that
24
Criteria to be considered such as the following appear in
the statutes governing the granting of applications for various
permits: ""enjoyment of natural scenic beauty and environmental
quality," "will not endanger life, health or property,"
"reasonable needs of the public," "public interest," "not have
undue adverse impact on other environmental values such as, but
not limited to, ecological balance, public health and
welfare, . . . the aesthetics of land and water and recreational
use" See, e.g., Wis. Stat. §§ 31.06(3), 31.08, 196.491(3)(d).
30
No. 2015AP491
justify the zoning ordinance; the factors are too general and
too remotely related to what the board is required to do to
supply the necessary guidelines for the board or Humble Oil.
The court stated that the ordinance did not "inform Humble and
any other parties hoping to build filling stations of what was
required of them and what factors were to be considered by the
board in disposing of each application . . . and this was bound
to create a situation in which the board could do just as it
pleased." Humble Oil, 25 Wis. 2d at 11.
¶70 The court was careful in Humble Oil, however, to
preserve the board's exercise of discretion and judgment in
issuing conditional use permits. The Humble Oil court reviewed
several cases that addressed the validity of the standards set
forth in zoning ordinances. Humble Oil, 25 Wis. 2d at 8-9. For
instance, in discussing prior cases ruling on whether an
ordinance was too broad, the court referred approvingly to
ordinances that "contained guidelines that pinpointed some of
the considerations that were to govern the exercise of
discretionary power either by the common council or the zoning
board." Humble Oil, 25 Wis. 2d at 9. In contrast, the
ordinance in the Humble Oil case did not pinpoint any such
considerations.
¶71 Applying Kraemer and Humble Oil, we conclude that the
Trempealeau County ordinance at issue in the instant case is
more similar to the Kraemer ordinance and to the ordinance the
court upheld in Smith v. City of Brookfield, 272 Wis. 1, 7-10,
31
No. 2015AP491
74 N.W.2d 770 (1956),25 than to the ordinance the court declared
unconstitutionally vague in Humble Oil.
¶72 After comparing Humble Oil and Smith, the court of
appeals in Guse v. City of New Berlin, 2012 WI App 24, ¶¶10-12,
339 Wis. 2d 399, 810 N.W.2d 838, concluded that "ordinances may
vest boards with some (and even significant) discretion without
being unconstitutionally vague." Like the ordinances in
Kraemer, Smith, and Guse, Trempealeau County's zoning ordinance
does not "blanket the [Committee] with unfettered discretion."
Guse, 339 Wis. 2d 399, ¶11.26
¶73 In sum, the Trempealeau County Environment & Land Use
Committee kept within its jurisdiction. It exercised its
discretion in deciding whether to grant AllEnergy's application
25
In Smith v. City of Brookfield, 272 Wis. 1, 7-10, 74
N.W.2d 770 (1956), the court held that a general statement of
purpose contained in the preamble to the town's comprehensive
zoning ordinance provided sufficient guidance. The stated
purpose was "to provide adequate light, pure air, and safety
from fire and other dangers, to conserve the taxable value of
land and buildings throughout the township, to avoid congestion
in the public streets and highways and to promote the public
health, safety, comfort, morals, and welfare, all in accordance
with a comprehensive zoning plan . . . ." (Emphasis in
original.)
26
See also Town of Grand Chute v. U.S. Paper Converters,
Inc., 229 Wis. 2d 674, 686, 600 N.W.2d 33 (Ct. App. 1999)
(concluding that "a town, regulating development within its
boundaries, must create an ordinance [with enough specificity]
to give developers reasonable notice of the areas of inquiry
that the town will examine in approving or disapproving proposed
sites.").
32
No. 2015AP491
for a conditional use permit, adhering to the criteria set forth
in the ordinance.
III
¶74 We turn now to the second issue AllEnergy presents:
Whether the Trempealeau County Environment & Land Use Committee
"might reasonably make the order or determination in question
based on evidence." This issue raises the question of the
sufficiency of the evidence supporting the Committee's decision.
The sufficiency of the evidence is determined under the
substantial evidence test.27
¶75 Substantial evidence is evidence of such convincing
power that reasonable persons could reach the same decision as
the local governmental entity,28 even if there is also
substantial evidence to support the opposite decision.29
27
Gehin v. Wis. Group Ins. Bd., 2005 WI 16, ¶6 nn.5-6, 278
Wis. 2d 111, 692 N.W.2d 572 (citing State ex rel. Harris &
Annuity Pension Bd., 87 Wis. 2d 646, 652, 275 N.W.2d 668
(1979)).
28
Oneida Seven Generations Corp., 362 Wis. 2d 290, ¶43.
See also Gehin, 278 Wis. 2d 111, ¶48 ("Substantial evidence
has been defined in the case law as 'that quantity and quality
of evidence which a reasonable [person] could accept as adequate
to support a conclusion.") (footnotes and citations omitted).
29
Sills v. Walworth Cty. Land Mgt., 2002 WI App 111, ¶¶10-
11, 254 Wis. 2d 538, 648 N.W.2d 878 ("We must uphold the
Committee's decision so long as it is supported by substantial
evidence, even if there is also substantial evidence to support
the opposite conclusion.").
33
No. 2015AP491
Reasonable inferences may be drawn from credible evidence.30 If
"credible, relevant and probative evidence upon which reasonable
persons could rely to reach a decision" supports the decision of
the Trempealeau County Environment & Land Use Committee, the
court will uphold the decision.31
¶76 Quantitatively, substantial evidence is less than a
preponderance of the evidence, Smith v. City of Milwaukee, 2014
WI App 95, ¶22, 356 Wis. 2d 779, 854 N.W.2d 857, but "more than
'a mere scintilla' of evidence and more than 'conjecture and
speculation.'" Gehin v. Wis. Group Ins. Bd., 2005 WI 16, ¶48,
278 Wis. 2d 111, 692 N.W.2d 572 (quoted sources omitted).
¶77 AllEnergy contends that there is no substantial
evidence in the record upon which the Trempealeau County
Environment & Land Use Committee could deny AllEnergy's
application because the Committee could not rely on the
"uncorroborated hearsay" in the record or the lay opinions by
persons lacking appropriate special expertise.
¶78 AllEnergy errs in trying to apply the Wisconsin Rules
of Evidence to the instant case. The Wisconsin Rules of
Evidence govern court proceedings, not administrative
proceedings. Wisconsin Stat. § 901.01 states that Chapters
901.01 to 901.11, the Wisconsin Rules of Evidence, "govern
30
Delta Biological Res., Inc. v. Bd. of Zoning Appeals of
City of Milwaukee, 160 Wis. 2d 905, 910-915, 467 N.W.2d 164 (Ct.
App. 1991).
31
See Sills, 254 Wis. 2d 538, ¶11.
34
No. 2015AP491
proceedings in the courts of the state of Wisconsin . . . ."
The Wisconsin Rules of Evidence, by their very terms, do not
govern the proceedings of the Trempealeau County Environment &
Land Use Committee, administrative proceedings.
¶79 More recently, this court stated: "[A]n agency or
hearing examiner is not ordinarily bound by common law or
statutory rules of evidence." Gehin, 278 Wis. 2d 111, ¶¶6, 49-
50.32
¶80 AllEnergy cites Folding Furniture Works v. Wisconsin
Labor Relations Board, 232 Wis. 170, 285 N.W. 851 (1939), as
support for its restrictive view of what constitutes substantial
evidence. But Folding Furniture does not support AllEnergy.
¶81 In Folding Furniture, 232 Wis. at 188, the court
stated that an administrative decision cannot be based on
32
On certiorari review, the substantial evidence test is
the same substantial evidence test used for the review of
administrative determinations under Wis. Stat. ch. 227. Gehin,
278 Wis. 2d 111, ¶6.
The statute governing the admission of evidence before
administrative agencies in contested cases, Wis. Stat.
§ 227.45(1), states that an agency is not bound by common law or
statutory rules of evidence and adopts a "reasonable probative
value test" for admission of testimony:
[A]n agency or hearing examiner shall not be bound by
common law or statutory rules of evidence. The agency
or hearing examiner shall admit all testimony having
reasonable probative value, but shall exclude
immaterial, irrelevant or unduly repetitious
testimony . . . . Basic principles of relevancy,
materiality and probative force shall govern the proof
of all questions of fact.
35
No. 2015AP491
uncorroborated hearsay alone; uncorroborated hearsay alone does
not constitute substantial evidence. But Folding Furniture made
clear that an administrative decision is based on substantial
evidence if it is based on evidence having rational probative
force.
¶82 Folding Furniture, 232 Wis. at 189, quotes with favor
Consolidated Edison Co. of New York v. National Labor Relations
Board, 305 U.S. 197, 229-30 (1938), in which the United States
Supreme Court stated: Mere uncorroborated evidence does not
constitute substantial evidence. Substantial evidence means
evidence having rational probative force, that is, relevant
evidence accepted by a reasonable mind as adequate to support a
conclusion. The Consolidated Edison Court stated as follows:
The obvious purpose of this and similar provisions
[freeing an administrative agency of rules of
evidence] is to free administrative boards from the
compulsion of technical rules so that the mere
admission of matter which would be deemed incompetent
in judicial proceedings would not invalidate the
administrative order. . . . But this assurance of a
desirable flexibility in administrative procedure does
not go so far as to justify orders without a basis in
evidence having rational probative force. Mere
uncorroborated hearsay or rumor does not constitute
substantial evidence.
. . . .
Substantial evidence is more than a mere scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
(Emphasis added and citations omitted).
¶83 As this court discussed in Gehin, a subsequent United
States Supreme Court case, Richardson v. Perales, 402 U.S. 389,
36
No. 2015AP491
407-08 (1971), explained the Consolidated Edison language that
"mere uncorroborated hearsay" is not substantial evidence by
emphasizing the language "rational probative effect" and
explaining that hearsay can have such an effect:
Although the [medical] reports are hearsay in the
technical sense, because their content is not produced
live before the hearing examiner, we feel that the
claimant and the Court of Appeals read too much into
the single sentence from Consolidated Edison. The
contrast the Chief Justice was drawing, at the very
page cited, was not with material that would be deemed
formally inadmissible in judicial proceedings but with
material 'without a basis in evidence having rational
probative force.' This was not a blanket rejection by
the Court of administrative reliance on hearsay
irrespective of reliability and probative value. The
opposite was the case.
¶84 In Gehin v. Wisconsin Group Insurance Board, 2005 WI
16, ¶54, 278 Wis. 2d 111, 692 N.W.2d 572, the court reinforced
Folding Furniture (and Consolidated Edison), stating that
Folding Furniture allows flexibility in the admission of hearsay
evidence but that "this flexibility does not go so far as to
justify administrative findings that are not based on evidence
having a rational probative force."
¶85 Folding Furniture (adopting the Consolidated Edison
language) has been followed in Wisconsin since 1939. Gehin, 278
Wis. 2d 111, ¶56. We adhere to Folding Furniture in the instant
case.
¶86 In any event, the Trempealeau County Environment &
Land Use Committee did not base its denial of AllEnergy's
application for a conditional use permit solely on
uncorroborated hearsay. Indeed, as we illustrate below, the
37
No. 2015AP491
record is replete with specific and substantial representations
of people describing their first-hand experiences with frac sand
mines and their opinions.
¶87 The Committee and the courts would be remiss to ignore
the words of concerned persons familiar with frac sand mining
and the environs. Zoning is a matter of local concern, and many
of the people commenting at the hearing on AllEnergy's proposal
have either lived near a frac sand mine or will be living,
working, and recreating alongside the proposed mine. The
language of the Trempealeau County Zoning Ordinance clearly
anticipates and invites public opinion. Thus, public
expressions of support or opposition establish a valid basis——
that is, substantial evidence——for a decision on AllEnergy's
application for a conditional use permit.33
¶88 The substantial evidence test is a significant hurdle
for AllEnergy to overcome because, in applying the test, this
33
Substantial evidence, defined similarly to the Wisconsin
definition, is used in case law of other jurisdictions. See,
e.g., Ocean View Estates Homeowners Ass'n v. Montecito Water
Dist., 116 Cal. App. 4th 396, 402 (2004) (opinions and
observations about aesthetics can constitute substantial
evidence); State of Missouri ex rel. Karch v. Camden Co., 302
S.W.2d 754 (Mo. Ct. App. 2010) (lay witnesses' testimony that
increased boat traffic endangered public health or safety and
would destroy nature of area constituted substantial evidence);
City of Las Vegas v. Laughlin, 893 P.2d 383, 385 (Nev. 1995)
(public concerns over increased traffic where children walk to
school and preserving residential nature of neighborhood
constituted substantial evidence); Bellsouth Mobility v. Miami-
Dade Cty., 153 F. Supp. 2d 1345, 1354 (S.D. Fla. 2001) (decision
on proposed cellular facility based on residents' aesthetic
concerns was based on substantial evidence).
38
No. 2015AP491
court is deferential to the decision of the Trempealeau County
Environment & Land Use Committee.34 Certiorari review accords
the decision of the local governmental entity a presumption of
"correctness and validity."35
¶89 Finally, in applying the substantial evidence test on
certiorari review, a court does not reweigh the evidence.
Roberts v. Manitowoc Cty. Bd. of Adjustment, 2006 WI App 169,
¶32, 295 Wis. 2d 522, 721 N.W.2d 499. Rather, we consider only
whether the Trempealeau County Environment & Land Use Committee
made a reasonable decision based on the evidence before it.36 In
making this determination, we may look to the whole record.
"[A] reviewing court should consider the context of the evidence
when determining whether it supports a municipality's action."
Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50,
¶45, 362 Wis. 2d 290, 865 N.W.2d 162.
34
See Clark v. Waupaca Cty. Bd. of Adjustment, 186
Wis. 2d 300, 305, 519 N.W.2d 782 (1993) (citing Van Ermen v.
DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978) ("As the
substantial evidence test is highly deferential to the board's
findings, we may not substitute our view of the evidence for
that of the board when reviewing the sufficiency of the evidence
on certiorari.")).
35
Kapischke v. Cty. of Walworth, 226 Wis. 2d 320, 328, 595
N.W.2d 42 (Ct. App. 1999).
36
Roberts v. Manitowoc Cty. Bd. of Adjustment, 2006 WI App
169, ¶28, 295 Wis. 2d 522, 721 N.W.2d 499 ("[I]t is not
'substantial concerns' that will overcome the Board's decision,
but rather the absence of substantial supporting evidence.").
39
No. 2015AP491
¶90 The context in which we consider the evidence in the
instant case is the location and nature of the proposed non-
metallic mineral mine, the applicable provisions of the
Trempealeau County ordinance, and the record of the hearing
before the Trempealeau County Environment & Land Use Committee.
¶91 The proposed mine area was to be located in an
Exclusive Agriculture (EA-2) district. Non-metallic mineral
mining, including industrial frac sand mining, is a conditional
use in EA-2 districts. Trempealeau County Zoning Ordinance
§ 13.01. "Conditional uses are for those particular uses that a
community recognizes as desirable or necessary but which the
community will sanction only in a controlled manner." Town of
Rhine v. Bizzell, 2008 WI 76, ¶20, 311 Wis. 2d 1, 751
N.W.2d 780. The Trempealeau County Board of Supervisors
concluded that non-metallic mineral mines may be desirable in
EA-2 districts, but only if the applicant for a conditional use
permit demonstrates that it will meet the standards contained in
the County's ordinance. See ¶¶39-45, supra.
¶92 Under the provision in the ordinance governing
conditional uses, the Trempealeau County Environment & Land Use
Committee has to determine that AllEnergy's proposed mine "will
not be contrary to the public interest and will not be
detrimental to or injurious to the public health, public safety,
or character of the surrounding area." Trempealeau County
Zoning Ordinance § 10.04(5)(a). The Trempealeau County Board of
Supervisors set forth several factors to guide the Committee's
inquiry into the public health, public safety, and character of
40
No. 2015AP491
the surrounding area. Trempealeau County Zoning Ordinance
§ 10.06(6). See ¶39, supra.
¶93 Because AllEnergy applied for a conditional use permit
to open and operate a non-metallic mineral mine, it also had to
satisfy the standards the Trempealeau County Board of
Supervisors established for non-metallic mineral mining,
including the wise use of natural resources, aesthetics, the
market value of land, and the legitimate interests of properties
in the vicinity. See Trempealeau County Zoning Ordinance
Chapter 13 (Non-metallic Mining); ¶¶43-45, supra.
¶94 Having set forth the substantial evidence test and the
provisions of the county ordinance governing the standards and
factors that the Trempealeau County Environment & Land Use
Committee must consider, we examine the record to determine
whether substantial evidence exists in the record to support the
Committee's denial of AllEnergy's application for a conditional
use permit.
¶95 AllEnergy has the burden of proof (persuasion) to
demonstrate satisfaction of the criteria for a conditional use
permit. Trempealeau County Zoning Ordinance § 10.04(5)(c). The
Trempealeau County Environment & Land Use Committee is directed
to deny an application for a conditional use permit if the
application does not meet any of the conditional use or non-
metallic mineral mining standards. Trempealeau County Zoning
41
No. 2015AP491
Ordinance § 10.04(5)(c).37 If substantial evidence supports any
of the Committee's reasons for denying AllEnergy's application
pursuant to the criteria in the ordinance, the court will affirm
the Committee's decision.38 We conclude that substantial
evidence supports the reasons expressed by the members of the
Committee for denying AllEnergy's application for a conditional
use permit.
¶96 The court of appeals aptly synthesized the Trempealeau
County Environment & Land Use Committee's reasons for denying
AllEnergy's application for a conditional use permit. The
Committee denied AllEnergy's application for four primary
reasons:
(1) AllEnergy's plan was "rushed," "incomplete," and
had been modified between the time of the plan's
preliminary review and presentation at the public
hearing;
(2) The proposed mine raises environmental concerns;
(3) The proposed mine would change the landscape and
would have adverse effects on wildlife and
recreational opportunities available to residents and
tourists; and
37
"At all times the burden of proof to demonstrate
satisfaction of these criteria remains with the applicant." See
also Delta Biological, 160 Wis. 2d at 910-12 ("The burden of
proof at all times remains with the applicant.").
38
Clark v. Waupaca Cty. Bd. of Adjustment, 186 Wis. 2d 300,
304, 519 N.W.2d 782 (Ct. App. 1994) ("[I]f we conclude that any
one of the board's reasons for denying the variances at issue
passes certiorari review, we affirm without commenting on the
board's other reasons."); see also Trempealeau County Zoning
Ordinance § 10.04(5) (the Committee may deny the application if
it does not satisfy any of the ordinance's criteria).
42
No. 2015AP491
(4) The proposed mine raised health concerns and would
result in changes in local culture and conditions.
¶97 The court of appeals reviewed whether substantial
evidence supports the first reason for denying the permit. We
do not. We look to the other primary reasons, summarized above,
beginning with whether substantial evidence supports denying the
application on the ground that the project raised environmental
concerns, including the condition of Trout Run Creek, water
quality, flooding, and wetlands.
¶98 Marlys Kolstad opined that the proposed mine on the
banks of Trout Run Creek would endanger this Class II trout
stream and tributary of the Trempealeau River. She explained
that a 2014 report39 noted that the stream was on the verge of no
longer being able to sustain healthy populations of trout. The
Creek's impairment was caused by "run-off from uplands and
barnyards, [which] continue[s] to degrade habitat conditions,"
and with the "external draining associated with frac sand
mining, sediment can be carried into the creek causing further
damage to the health of this trout stream."
¶99 Building the proposed mine on wetlands next to Trout
Run Creek worried Noah Slaby, an Arcadia resident with two young
children and two properties bordering the proposed site of the
mine:
Of all the possible negative effects of this project,
the location of the rail spur and processing facility
39
The reference is to a publicly available publication of
the Wisconsin Department of Natural Resources.
43
No. 2015AP491
is the most disturbing with its close proximity to a
registered trout stream, river, and wetland. This
river bottom is also very prone to flooding and with
my own experience with farming and pasturing cattle in
this low lying area, less than a mile away[,] I can't
imagine trying to control piles of sand, overburden
and containment ponds when such common flooding
occurs. . . . [W]ater quality is dependent upon
wetlands to purify the water we drink and to filter
out impurities that exist in our water from field run-
off and other human pollutants.
¶100 Concern about the proposed mine's potential to
aggravate flooding in a flood-prone area was repeated time and
time again to the Committee. For instance, Henry Schultz
opposed allowing a mine "whose process and loading facilities
are to be located within a flood prone area. [Because] [h]igh
water won't be an unusual occurrence; it will be a recurrent
problem."
¶101 Indeed, Pat and Mary Slaby, who own a farm a mile
downstream from the site of the proposed mine, reiterated the
flooding concern in an e-mail that was read into the record:
"This past year alone the river bridge crossing had been closed
on at least three different occasions . . . . We have been
battling high water in our fields, roads, and basements and each
year it seems to get worse." According to the Slabys, filling
in these upstream wetlands would be akin to "giving up our
greatest asset on battling flood water."
¶102 Kathy Lockington explained that a neighboring mine's
development has caused numerous water quality problems. For
example, since the sand mine was built, she has spent $550 on
water quality testing that looks for both dust and
44
No. 2015AP491
polyacrylamides (one of the chemicals used in frac sand mining).
She explained: "Our water softener has sand. The guy came and
said you have sand in your filter. I have drawn out water and
if you set it in a white bucket, the sand is in there."
¶103 Clearly, the Trempealeau County Environment & Land Use
Committee had substantial evidence on which to conclude that the
proposed mine raises environmental concerns and would have an
adverse impact upon "surface water drainage, water quality and
supply," factors the Trempealeau Zoning Ordinance required the
Committee to consider.
¶104 Turning to the effect of the mine on the landscape,
wildlife, and recreational opportunities, Abby Johnson's e-mail
read into the record stated that wetlands are "very important
ecosystems that need protection from developments." The
wetlands were described as seasonal home to "[v]arious species
of waterfowl . . . as their breeding ground." "A rail spur
would decrease the livability and functionality of these unique
ecosystems that are important for maintaining a diverse
population of waterfowl and plant species."
¶105 The record also demonstrates that placing a sprawling,
550-acre frac sand mine among Trempealeau County's rolling hills
would change the landscape. The Trempealeau County Environment
and Land Use Committee had sufficient evidence to conclude that
the project would be "detrimental to or injurious to
the . . . character of the surrounding area," and would have an
adverse effect on "aesthetics, including but not limited to
scenic beauty and the conservation of natural resources of
45
No. 2015AP491
outstanding quality or uniqueness." Trempealeau County Zoning
Ordinance §§ 10.04(5)(a), 13.03(3)(a)(5).
¶106 Aesthetic concerns, that is, changes to the landscape,
were raised repeatedly by members of the public.40 Duane and
Theresa Matelski reported that they "marvel everyday at the
breathless beauty in the ridges and valleys that make up our
County. It saddens us greatly that this unique beauty is so
quickly disappearing, and the eyesore of yet another mine dots
what was once a beautiful vista here in Trempealeau County."
¶107 Henry Schultz noted the aesthetic degradation inherent
to the project: AllEnergy's plan called for "extract[ing] sand
from several sites over time that are not connected except by a
network of conveyors that greatly expands the footprint of the
whole operation . . . sprawling over the landscape."
¶108 Noah Slaby stated: "This driftless area has brought
people here to visit and live. What incentive do young families
have to stay in this area when the very values and landscape
that they love continue to be compromised?" He noted that
AllEnergy's representative even "commented on what a beautiful
40
See VoiceStream Minneapolis, Inc. v. St. Croix Cty., 342
F.3d 818, 831 (7th Cir. 2003) ("Indeed, every circuit to
consider the issue [of telecommunications siting] has determined
that aesthetics may constitute a valid basis for denial of a
wireless permit if substantial evidence of the visual impact of
the tower was before the board."). See also Village of
Menomonee Falls v. DNR, 140 Wis. 2d 579, 607, 412 N.W.2d 505
(Ct. App. 1987).
46
No. 2015AP491
area this is, but yet he is here to change the topography of the
land."
¶109 To some residents, the proposed mine would result in
changes in local culture and conditions. The mine would
eliminate their pastoral lifestyles. For example, Diane
Waniorek's letter read into the record expressed her concern
that she "will no longer be able to maintain the farm that has
been in [her] family for over 100 years." She explained that
"[h]aving a sand mine so close to my home will decrease the
property value and quality of life . . . [and] may force my
family to abandon land on which [it] has lived for over a
century."
¶110 Clearly, the Trempealeau County Environment & Land Use
Committee had substantial evidence in the record to support its
conclusion that the proposed mine would result in changes in
local culture and aesthetics.
¶111 Finally, many people who lived near existing frac sand
mines testified about health problems caused by sand and dust.
¶112 Bobbi and Richard Halvorsen's e-mail read into the
record described problems that their family faced from the dust
caused by a frac sand mine. They eventually had to move away
from the mine because their daughter had "asthma which grew
progressively worse," Bobbi Halvorsen "lived with a constant
headache," and their "five year old [had] continuing problems
with allergies. . . ." All of these health problems disappeared
once the family moved away from the mine.
47
No. 2015AP491
¶113 Lois Taylor, a registered nurse, reiterated these
health concerns in an e-mail that was read into the record at
the hearing. She stated that she believes "there needs to be a
land use impact study focusing on health risks related to air
and water quality . . . ." Sherie Sacia, a health worker,
expressed concern in an e-mail read into the record that the
health impacts of frac sand mining are unknown and that it is
"[b]etter to slow the process down until we are sure of any
health impacts. All of our famil[ies'] health depends on you."
¶114 Once again, health concerns——ranging from anecdotal to
professionally based——were substantial evidence on which the
Trempealeau County Environment & Land Use Committee could base
its denial of AllEnergy's application. The Committee is
required by the ordinance to analyze a proposal for non-metallic
mineral mining in light of the "impacts . . . on the general
health, safety and welfare of the public." Trempealeau County
Zoning Ordinance § 13.01.
¶115 The Trempealeau County Environment & Land Use
Committee's decision must be upheld if any reason set forth in
the ordinance for denying the permit is supported by substantial
evidence. Surely, a reasonable person could conclude that the
public comments at the hearing were relevant, probative
evidence, providing substantial evidence in the record to
support the Committee's decision to deny AllEnergy's application
because the proposed mine raises environmental concerns, changes
the landscape, would have adverse effects on wildlife and
48
No. 2015AP491
recreational opportunities, would result in changes in local
culture and aesthetics, and raises public health concerns.
¶116 AllEnergy contends, however, that its experts had an
adequate response to each and every one of the concerns
expressed by the members of the Trempealeau County Environment &
Land Use Committee who voted against the application.
¶117 AllEnergy's arguments amount to asking this court to
reweigh the evidence. Reweighing the evidence is not part of
the substantial evidence test or the role of this court.41 The
Committee need not have accepted an expert's testimony. It had
the discretion to weigh the expert's testimony against other
evidence in the record. Expert testimony, for example, cannot
allay aesthetic concerns raised by a large open mine site in a
beautiful part of the state.
¶118 On review of the record, we conclude that substantial
evidence exists to support the Trempealeau County Environment &
Land Use Committee's decision to deny AllEnergy's application
for a conditional use permit.
IV
41
For example, AllEnergy argues that its expert testimony
rebutted public comments regarding runoff concerns.
"AllEnergy's ecologist testified that the project would minimize
and improve 'the current conditions by controlling runoff and
storm water through construction of storm water retention
basin[s] and infiltration basins as well." Brief of
Petitioners-Appellants-Petitioners (AllEnergy) at 38. The
Trempealeau County Environment and Land Use Committee apparently
was not persuaded by AllEnergy's expert. The Committee,
instead, opted to give more weight to the reports of members of
the public who lived near the proposed mine site.
49
No. 2015AP491
¶119 Finally, we address AllEnergy's request that the court
"adopt a new doctrine that where a conditional use permit
applicant has shown that all conditions and standards, both by
ordinance and as devised by the zoning committee, have been or
will be met, the applicant is entitled to the issuance of the
permit." As we explained previously, this request is based on
AllEnergy's assertion that AllEnergy satisfied all the specific
conditions in the ordinance as a matter of law and cannot be
required to satisfy subjective, generalized conditions and
standards in the ordinance.
¶120 Quoting Rathkopf's The Law of Zoning and Planning,
AllEnergy proposes the following rule: "If the administrative
body finds compliance with the standards or requisites set forth
in the ordinance, the right to the exception exists, subject to
such specific safeguarding conditions which the agency may
impose by reason of the nature, location, and incidents of the
particular use."42
¶121 AllEnergy argues that other states follow this rule,
but provides very little justification for our discarding
precedent beyond the following cursory statement: "The
rationale for recognition of the right has been that a decision
to deny a CUP [conditional use permit] is arbitrary where the
applicant has met the ordinance standards and where conditions
42
Brief of Petitioners-Appellants-Petitioners (AllEnergy)
at 45 (quoting Rathkopf § 61:37 at 61-99) (emphasis added).
50
No. 2015AP491
can be adopted to address additional potentially-adverse
impacts."43
¶122 We discussed AllEnergy's "entitlement" argument
previously in our discussion of whether the Trempealeau County
Environment & Land Use Committee kept within its jurisdiction in
denying AllEnergy's application for a conditional use permit.
We declined to adopt AllEnergy's argument. See Part II, ¶¶50-
54, supra.
¶123 Less than a decade ago, the court in Town of Rhine v.
Bizzell, 2008 WI 76, 311 Wis. 2d 1, 751 N.W.2d 780, rejected——on
the merits——a nearly identical rule as the one AllEnergy urges
in the instant case. In Bizzell, 311 Wis. 2d 1, ¶56, the court
concluded that the entitlement argument was "without merit."
¶124 In elucidating the difference between permitted uses
and conditional uses, the Bizzell court explained that "[e]ven
though conditional uses may be authorized pursuant to the
ordinance, that does not render them uses as of right."
Bizzell, 311 Wis. 2d 1, ¶56 (citing Gail Easley, Conditional
Uses: Using Discretion, Hoping for Certainty, American Planning
Association Zoning Practice, May 2006, at 8).44 Rather, the
43
Brief of Petitioners-Appellants-Petitioners (AllEnergy)
at 48.
44
See also Bizzell, 311 Wis. 2d 1, ¶59:
[W]hile discussing rules that generally govern
conditional uses, Anderson's American Law of Zoning
states, '[t]he designation of a use in a zoning
district as a conditional use does not constitute an
authorization or assurance that such use will be
(continued)
51
No. 2015AP491
Bizzell court further explicated that "[c]onditional uses are
for those particular uses that a community recognizes as
desirable or necessary but which the community will sanction
only in a controlled manner." Bizzell, 311 Wis. 2d 1, ¶20
(citing State ex rel. Skelly Oil Co. v. Common Council, City of
Deerfield, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973)). "[U]ses
subject to a conditional use permit are necessary to the
community, but because they often represent uses that may be
problematic, their development is best governed more closely
rather than as of right." Bizzell, 311 Wis. 2d 1, ¶24. Whether
a conditional use can be sanctioned depends on whether the use
meets the criteria set forth in the governing ordinance.
¶125 Looking to the language of the Town of Rhine ordinance
governing conditional uses in Bizzell, the Bizzell court
concluded that the Town of Rhine ordinance's language in and of
itself foreclosed an entitlement argument. The standards for
"obtaining a conditional use permit [were] subject to
significant interpretation." Bizzell, 311 Wis. 2d 1, ¶58.
¶126 For example, the ordinance at issue in Bizzell
directed the zoning board to consider whether a conditional use
permit would "preserve natural growth and cover and promote the
natural beauty of the township." Bizzell, 311 Wis. 2d 1, ¶58.
This standard, and others like it, were "simply not specific
approved.' 5 Alan C. Weinsten, Anderson's American Law
of Zoning, § 34.23, at 573 (4th ed. 1997). While
perhaps not dispositive, this assertion casts doubt on
the Town of Rhine's entitlement argument.
52
No. 2015AP491
enough that one can reasonably say that any use as of right
exists . . . ." Bizzell, 311 Wis. 2d 1, ¶58.
¶127 Additionally, nothing in the Bizzell ordinance stated
that "[i]f all requirements are met, the conditional use permit
shall be granted." Bizzell, 311 Wis. 2d 1, ¶59.
¶128 AllEnergy faces the same roadblock in the instant
case. The Trempealeau County ordinance uses language similar to
that in Bizzell to set forth factors for the Trempealeau County
Environment & Land Use Committee to consider. See, e.g.,
Trempealeau County Zoning Ordinance § 10.04(5)(b)15. ("adversely
affect[s] the natural beauty"), § 13.01 ("wise use of natural
resources"). No language in the Trempealeau County Zoning
Ordinance guarantees that a conditional use permit shall be
granted if all requirements are met.
¶129 AllEnergy has failed to provide a compelling reason
for this court to depart from long-standing precedent. We shall
therefore adhere to stare decisis and reaffirm Bizzell's
rejection of AllEnergy's "entitlement" approach to conditional
use permits.
V
¶130 In conclusion, we affirm the decision of the court of
appeals. On certiorari review, we accord the decision of the
Trempealeau County Environment & Land Use Committee a
presumption of validity and correctness. AllEnergy has not
successfully rebutted that presumption. The Trempealeau County
Environment & Land Use Committee kept within its jurisdiction in
denying AllEnergy's application for a conditional use permit.
53
No. 2015AP491
It relied on standards that the Trempealeau County Board of
Supervisors adopted and explicitly directed the Committee to
consider. The Committee's denial of AllEnergy's application was
based on substantial evidence in the record.
¶131 Finally, we reject AllEnergy's entitlement approach to
conditional use permits. This approach has no basis in our
precedent or the language of the Trempealeau County ordinance;
it has been rejected previously by the court. Without a
compelling reason, and none has been given, the court will not
overturn settled law.
¶132 For the reasons set forth, we affirm the decision of
the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
54
No. 2015AP491.akz
¶133 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I
respectfully concur in the mandate. In my view, the lead
opinion and the dissent have made this case much more
complicated and potentially more far-reaching in effect than it
should be. This case can and should be decided narrowly: ours
is a certiorari review.
¶134 Our review in this case is limited. On certiorari
review we examine:
(1) whether the [Trempealeau County Environment & Land
Use Committee ("the Committee")] kept within its
jurisdiction; (2) whether it proceeded on a correct
theory of law; (3) whether its action was arbitrary,
oppressive, or unreasonable and represented its will
and not its judgment; and (4) whether the evidence was
such that it might reasonably make the order or
determination in question.
Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50,
¶41, 362 Wis. 2d 290, 865 N.W.2d 162 (quoting Ottman v. Town of
Primrose, 2011 WI 18, ¶35, 332 Wis. 2d 3, 796 N.W.2d 411).
¶135 Moreover, our review in this case must be deferential.
The decision of the Committee "is entitled to a presumption of
correctness and validity." Sills v. Walworth Cty. Land Mgmt.
Comm., 2002 WI App 111, ¶6, 254 Wis. 2d 538, 648 N.W.2d 878.
¶136 I cannot conclude, given these controlling legal
standards, that the Committee's decision is invalid. See
Ottman, 332 Wis. 2d 3, ¶34 ("Certiorari is a mechanism by which
a court may test the validity of a decision rendered by a
municipality, an administrative agency, or an inferior
tribunal."). I agree with the lead opinion that the Committee's
decision survives the specific challenges made by AllEnergy
1
No. 2015AP491.akz
Corporation and AllEnergy Silica, Arcadia, LLC ("AllEnergy")
under this framework. That is, I agree that the Committee kept
within its jurisdiction and that the evidence was such that it
might reasonably have made the determination in question.
Although AllEnergy was able to complete its application shortly
before a moratorium on such projects went into effect, as the
court of appeals explained and as the lead opinion reiterates,
legitimate environmental and health concerns, among others,
supported the Committee's decision to nevertheless deny the
permit. The disposition of this case is appropriate when one
recognizes that decisions of the type made by the Committee
involve "local concerns" best handled at the local level. See
id., ¶51.1
¶137 Unfortunately, the lead opinion examines a number of
matters not necessary to this case and is not written narrowly
1
The dissent suggests it is improper to state that the
disposition of this case is in some way tied to the fact that
this appeal involves local decision-making. The dissent fails
to recognize that the correct disposition of this case depends
largely on the limited and deferential nature of our certiorari
review——a standard of review applied in part because we pass
upon the decision of a local governmental entity. It is
recognized, for example, that "[a] certiorari court may not
substitute its view of the evidence for that of the
municipality." Ottman v. Town of Primrose, 2011 WI 18, ¶53, 332
Wis. 2d 3, 796 N.W.2d 411. I of course agree that the
Committee, like any other governmental unit, must conduct itself
according to the law. But no one disputes, for instance, that
the Committee "proceeded on a correct theory of law"; that prong
of certiorari review was not invoked on this appeal. To say
that the local nature of the issues in this case bears upon the
outcome is consistent with our precedent and thus upholds the
rule of law rather than thwarts it.
2
No. 2015AP491.akz
enough for me to join it. For example, the lead opinion engages
in a discussion of the constitutionality of certain of
Trempealeau County's ordinances, in disregard of the basic
judicial principle that courts do not adjudge the
constitutionality of legislation unless it is necessary to do
so. See, e.g., Cty. of Milwaukee v. Williams, 2007 WI 69, ¶63,
301 Wis. 2d 134, 732 N.W.2d 770 ("[I]t is fundamental that a
court should not reach a constitutional question unless it is
essential to the determination of the case before it."). It is
most certainly not necessary to reach a constitutional question
on this certiorari review.
¶138 Indeed, one would think that if the lead opinion's
constitutional detour were necessary to our decision, the word
"constitution" might appear somewhere in AllEnergy's briefing.
It does not. That word does appear, however, in the Committee's
briefing, where it explains that "of course, AllEnergy has made
no argument in this case that the Zoning Ordinance is
unconstitutional." And even if AllEnergy were attempting to
sneak a constitutional argument in through the back door, I fail
to see why its gambit should be rewarded. See, e.g., Cemetery
Servs., Inc. v. Wis. Dep't of Regulation & Licensing, 221
Wis. 2d 817, 831, 586 N.W.2d 191 (Ct. App. 1998) ("For us to
address undeveloped constitutional claims, we would have to
analyze them, develop them, and then decide them. We cannot
serve as both advocate and court. For this reason, we generally
choose not to decide issues that are not adequately developed by
the parties in their briefs."). Little more need be said to
3
No. 2015AP491.akz
illustrate the gratuitousness of the lead opinion's discussion
in this regard.
¶139 I also part ways with the lead opinion's consideration
of AllEnergy's request that this court "adopt a new doctrine"
that a conditional use permit applicant has a "right to the
permit if the applicant shows that ordinance conditions have
been, or will be met and if concerns of potentially-adverse
impacts can be addressed by imposing additional conditions."
This issue, at least, is properly before the court. The
request, however, comprising the last few pages of AllEnergy's
brief, turns out to be moot. The Committee responded to
AllEnergy's argument in part by stating that the law already
required that "[i]f an applicant is able to unilaterally satisfy
all requirements and considerations of the ordinance, and no
substantial evidence is offered in opposition, for all practical
purposes the body would be required to grant the permit," but
added that AllEnergy had not established that it had met this
standard. Consequently, the question boiled down to whether
AllEnergy's permit application was properly denied. And, as
discussed, the Committee's decision that AllEnergy's application
should be denied under local law is valid. Consequently, the
court need not and should not weigh in on the necessity or
propriety of adoption of AllEnergy's proposed rule in this case.
¶140 In sum, our review in this case is limited and
deferential, and I agree that the decision of the court of
appeals should be affirmed. Of course, the appropriate
legislative body is always free to amend these ordinances.
4
No. 2015AP491.akz
However, in the case now before us, the presumption of
correctness and validity of the Committee's decision has not
been overcome. That is where our analysis should end.
¶141 For the foregoing reasons, I respectfully concur in
the mandate.
¶142 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins in this concurrence.
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No. 2015AP491.dk
¶143 DANIEL KELLY, J. (dissenting). We are "a government
of laws, and not of men."1 Unless one is trying to obtain a
conditional use permit from a municipality's land-use committee,
in which case the opposite is true. A government of laws
requires us to conform our actions to pre-existing standards
with discernible content. A government of men requires us to
conform our actions to a governing authority's ad hoc wishes.
Because our decision today condones the latter, I respectfully
dissent.
¶144 AllEnergy Corporation and AllEnergy Silica, Arcadia,
LLC (collectively, "AllEnergy") have an interest in a parcel of
property in an area zoned to allow non-ferrous mining as a
conditional use (I will refer to this property as the AllEnergy
Property2). AllEnergy wishes to mine sand on that property, and
so (along with the title owners) filed a conditional use permit
application with the Committee. The Committee denied the
application, citing the various concerns discussed in the
court's opinion.
¶145 Our obligation, in reviewing this case, was to
determine whether the Committee properly denied the application.
A municipal entity commits reversible error if it exceeds its
jurisdiction, incorrectly applies controlling legal principles,
1
J. Adams, 4 Life and Works of Johns Adams 99, 106 (1851)
(Novanglus Letter No. VII) (referring to the definition of a
"republic" as understood by Aristotle, Livy, and Harrington).
2
AllEnergy's application for a conditional use permit
identifies Gary Haines, Cortland Farm LLC, and Francis
Pronschinske as the title owners of the property.
1
No. 2015AP491.dk
acts arbitrarily by exercising its judgment instead of its will,
or bases its decision on insufficient evidence. Oneida Seven
Generations Corp. v. City of Green Bay, 2015 WI 50, ¶41, 362
Wis. 2d 290, 865 N.W.2d 162.
¶146 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. The Committee also
acted arbitrarily by failing to apply appropriate pre-existing
standards to the specific proposal contained in AllEnergy's
application.3
I
¶147 The Committee exceeded its jurisdiction for the same
reason our opinion is in error today. That is, we both failed
to account for what a County Board accomplishes when it includes
certain conditional uses in a zoning district. Both the
Committee and our opinion treat the conditional use as a piece
of unfinished zoning business, which the Committee may complete
when an owner applies for a permit. But a conditional use is
not a loose end. It is a determination that the identified use
3
This is not to say, however, that I believe the record is
sufficiently developed to conclude that the Committee should
have issued the conditional use permit. Because the Committee
did not complete its assigned task, as I discuss below, the
proper course would be to remand the matter to the Committee for
further proceedings.
2
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is compatible with the zoning district, and is subject only to
appropriate conditions to control for the potentially hazardous
aspects of the specific proposal under consideration.
¶148 Our error caused us to review the wrong question. We
(and the Committee) inquired into the general advisability of
operating a sand mine on the AllEnergy Property. Our duty was
to accept the County Board's determination that sand mining,
with all the incidents that necessarily accompany such a use, is
appropriate on that property. If we had done this, our
attention would have been focused where it belongs, to wit, on
whether AllEnergy's specific proposal created such hazards that
they could not be controlled even with the imposition of
appropriate conditions.4
A
¶149 By juxtaposing "conditional uses" and "permitted
uses," we can gain some useful insight into the essential nature
of the former. That insight will, in turn, illuminate how the
4
The concurring opinion says the "disposition of this case
is appropriate when one recognizes that decisions of the type
made by the Committee involve 'local concerns' best handled at
the local level." Concurrence, ¶136. This is a category error.
The "localness" of the governmental body making the decisions
has absolutely nothing to say about whether it made them
correctly. The rule of law does not lose its grip as the scope
of the governmental body scales down. The smallest unit of
government owes the same duty as the greatest: To conduct
itself according to law. We defer to a local government's
policy decisions because they are outside the remit of the
judiciary, but the legality of its decisions never is. So to
suggest the disposition of this case has anything to do with the
level of government making the decision is to miscategorize the
nature of our inquiry.
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Committee improperly took to itself authority to address a
question already answered by the County Board.
¶150 The chief characteristic of a permitted use is that it
is one to which an owner may put his property as a matter of
right. Town of Rhine v. Bizzell, 2008 WI 76, ¶19, 311
Wis. 2d 1, 751 N.W.2d 780 ("In general, zoning ordinances
provide landowners with permitted uses, which allow a landowner
to use his or her land, in said manner, as of right."). Thus,
for example, a person desiring to build a residence in a
residential zoning district need only comply with whatever
parameters may exist in that district (such as density, building
size, setbacks, height, etc.). So long as that zoning pertains,
and the proposed development does not exceed the district's
explicit limitations, the municipality may not deny a building
permit.5
¶151 This is not the case with "conditional uses." As we
have said before, a conditional use classification "allows a
property owner 'to put his property to a use which the ordinance
expressly permits when certain conditions [or standards] have
been met.'" Id., ¶21 (brackets in original; emphasis added)
(quoting State ex rel. Skelly Oil Co. v. Common Council, City of
Delafield, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973)). Such a
5
"Permissible uses are by-right uses, i.e., the uses are
named in the zoning ordinance and a property owner has the right
to establish the use so long as it conforms to the standards and
criteria of the zoning ordinance." Town of Rhine v. Bizzell,
2008 WI 76, ¶50, 311 Wis. 2d 1, 751 N.W.2d 780 (internal marks
omitted).
4
No. 2015AP491.dk
classification allows a municipality "to cope with situations
where a particular use, although not inherently inconsistent
with the use classification of a particular zone, may well
create special problems and hazards if allowed to develop and
locate as a matter of right in [a] particular zone." Skelly Oil
Co., 58 Wis. 2d at 701. The purpose of conditional use
classifications, therefore, is to provide for "those particular
uses that a community recognizes as desirable or necessary but
which the community will sanction only in a controlled manner."
Bizzell, 311 Wis. 2d 1, ¶20; see also 3 Edward H. Ziegler,
Rathkopf's The Law of Zoning and Planning § 61.1 at 61-3 (4th
ed. 1993) (stating the purpose of the conditional use
classification is to provide "same-site-specific discretionary
review of proposed uses that are generally deemed to be
presumptively compatible or desirable in a particular area or
zoning district."). They are "necessary to the community, but
because they often represent uses that may be problematic, their
development is best governed more closely rather than as of
right." Bizzell, 311 Wis. 2d 1, ¶24.6
¶152 From this we may distill that a conditional use is one
a municipality has determined is "desirable" or "necessary to
the community" and is not "inherently inconsistent with the use
classification of a particular zone . . . ." Id., ¶¶23-24. But
6
"Current zoning journals also support the conclusion that
the common, accepted zoning practice is to provide permitted
uses as of right and then, in addition to permitted uses, the
ordinance may provide for conditional uses." Bizzell, 311
Wis. 2d 1, ¶50.
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it is also one that "may well create special problems and
hazards if allowed to develop and locate as a matter of
right . . . ." Id., ¶23. So a "conditional use" listing is a
declaration that "the community will sanction [it] only in a
controlled manner." Id., ¶20. The manner in which the
community exercises its control is by allowing development to
proceed only "'when certain conditions [or standards] have been
met.'" Id., ¶21 (quoting Skelly Oil Co., 58 Wis. 2d at 701)
(brackets in Bizzell).
¶153 This means, of course, that a property owner is not
entitled to a conditional use permit as a matter of right. If
the use is dependent on satisfaction of "certain conditions or
standards," it necessarily follows that property owners have no
guarantee a permit will issue. We have previously said as much:
"'[T]he designation of a use in a zoning district as a
conditional use does not constitute an authorization or
assurance that such use will be approved.'" Bizzell, 311
Wis. 2d 1, ¶59 (quoting 5 Alan C. Weinstein, Anderson's American
Law of Zoning § 34.23, at 573 (4th ed. 1997)).
¶154 However, just because a property owner has no
guarantee a permit will issue does not mean a municipal
committee has free rein to deny an application. One of these
propositions is not the negation of the other, and we have been
very careful not to say so. For example, in Bizzell we
considered whether a municipality could create a zoning district
in which there were no permitted uses, only conditional uses.
Mr. Bizzell asserted that there must be some use to which a
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No. 2015AP491.dk
person may put his property as a matter of right. See id., 311
Wis. 2d 1, ¶14. The Town of Rhine responded that "conditional
uses are permitted uses because once the standards have been
satisfied a landowner is 'entitled' to the conditional use."
Id., ¶55. We rejected that argument as lacking any merit. See
id., ¶¶55-56. But we did so on the basis that "[p]ermitted uses
and conditional uses are different" in large part because there
is no absolute right to the latter. Id., ¶¶55-56 (citing S.
Kemble Fischer Realty Trust v. Bd. of Appeals of Concord, 402
N.E.2d 100, 103 (Mass. App. Ct. 1980) (stating that "[n]o one,
of course, has an absolute right to a special permit")). We did
not say a municipality could deny the application because it
does not believe the conditional use is appropriate for the
applicant's property. We just affirmed the proposition that
there is never an absolute (that is, unconditional) right to a
permit.
¶155 And in Edward Kraemer & Sons, Inc. v. Sauk County
Board of Adjustment, 183 Wis. 2d 1, 515 N.W.2d 256 (1994), we
said the court of appeals was mistaken in believing that a
"mineral extraction permit had to be granted and if conditions
were necessary to ensure compliance with the ordinance, the
Board was obligated to fashion them." Id. at 7. But that was
in the context of determining who bears the burden of
establishing compliance with the municipality's identified
standards. See id. at 16-17. We did not say the municipality
could deny an application because the proposed use comprised the
essential attributes of a mining operation.
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¶156 The court of appeals has not been similarly
circumscribed. In Delta Biological Resources, Inc. v. Board of
Zoning Appeals of Milwaukee, 160 Wis. 2d 905, 467 N.W.2d 164
(Ct. App. 1991), the appellant asserted that "a presumption
arises that the use serves the public interest from the fact
that the legislature permits it, and the special use[7] itself,
therefore, presumes a legislative determination that a public
need for the use exists." Id. at 911 (footnote added). From
this Delta Biological argued that "because the legislature's
provision for a special use exception is a determination that
such use does not materially affect the area adversely, denial
is proper only upon proof that adverse impact upon public
interest is greater than that which might be normally expected."
Id. at 912.
¶157 The court of appeals disagreed, stating "[w]e reject
Delta's argument because its linchpin, the presumption that the
conditional use serves the public interest, does not exist in
Wisconsin." Id. The court of appeals accurately identified
that argument as the linchpin in determining whether there are
circumstances in which a municipality must grant a conditional
use permit. See id. at 911-12. What it did not identify is any
authority for its surprising assertion that there is no
presumption that a conditional use serves the public interest.
7
"Special use" is synonymous with "conditional use." See,
e.g., Bizzell, 311 Wis. 2d 1, ¶20 ("ordinances may also provide
for conditional uses by virtue of a special use or conditional
use permit.").
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No. 2015AP491.dk
Nor did it identify any rationale that would make it an accurate
description of the state of the law.
¶158 Our opinion today recognizes that AllEnergy and Delta
Biological's arguments share the same linchpin. After quoting
Delta Biological's authority-free statement of the law, it
concludes that "our precedent dictates that no presumption
exists that a conditional use is ipso facto consistent with the
public interest or that a conditional use is a use as of
right . . . ." Lead op., ¶55. The latter part of the quote is
not material to the analysis because no one equates conditional
uses and uses as of right. But whether a "conditional use is
ipso facto consistent with the public interest" is a question of
the greatest moment here. Indeed, AllEnergy's case succeeds or
fails based on whether Delta Biological answered that question
correctly.
¶159 Delta Biological's answer is not correct. Bizzell——a
supreme court decision considerably more recent than Delta
Biological——teaches that a conditional use is one a municipality
has determined is "desirable" or "necessary to the community,"
and is not "inherently inconsistent with the use classification
of a particular zone . . . ." See Bizzell, 311 Wis. 2d 1,
¶¶23-24. It also tells us that when a community identifies a
"conditional use" with a property, it is sanctioning that use so
long as it is done "in a controlled manner." See id., ¶20.
This description of conditional uses is entirely inconsistent
with the court of appeals' statement that "the presumption that
the conditional use serves the public interest[] does not exist
9
No. 2015AP491.dk
in Wisconsin." See Delta Biological, 160 Wis. 2d at 912. We
should not assume that a municipality would "sanction" a use
that is contrary to the public interest. And the principle of
non-contradiction should prevent us from concluding that a use
that is "desirable" or "necessary to the community" can somehow
simultaneously not serve the public interest.
¶160 This places substantial limitations on the reasons a
municipality can give for denying a conditional use permit.
Because the types of uses identified as conditional uses are
"sanctioned," and either "desirable" or "necessary to the
community," an application for such a use may not be denied
because the owner proposes to engage in that type of use. That
is to say, if an ice-cream shop is a conditional use, a land-use
committee may not deny a permit because the committee's members
object to the owner selling ice-cream on his property. Such
objections are in order when the municipality adopts (or amends)
its zoning ordinance and considers which conditional uses (if
any) to include in each of its zoning districts. Upon adding a
conditional use to a zoning district, the municipality rejects,
by that very act, the argument that the listed use is
incompatible with the district. See, e.g., People's Counsel v.
Mangione, 584 A.2d 1318, 1322-23 (Md. Ct. Spec. App. 1991)
(explaining that a zoning ordinance providing for a special
exception is a legislative predetermination that such special
exception, subject to certain guides and standards, is
compatible with other uses identified for that zone); State ex
rel. Straatmann Enters., Inc. v. Cty. Of Franklin, 4 S.W.3d 641,
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No. 2015AP491.dk
650 (Mo. Ct. App. 1999) (explaining that a conditional use is
one authorized by a local legislative body that, in the absence
of having met certain conditions, may otherwise be incompatible
with the location).
¶161 An application for a conditional use permit is not an
invitation to re-open that debate. A permit application is,
instead, an opportunity to determine whether the specific
instantiation of the conditional use can be accomplished within
the standards identified by the zoning ordinance. See, e.g.,
Matter of Cove Pizza v. Hirshon, 61 A.D.2d 210, 212-13
(N.Y. App. Div. 1978) (where a special use ordinance allows for
certain types of restaurants, board cannot deny application
because it objects to the allowed special use). A land-use
committee, therefore, must focus on the owner's specific
proposal and determine whether that proposal can be made
compatible with the zoning ordinance's standards. See, e.g.,
id.; see also DeMaria v. Enfield Planning and Zoning Comm'n, 271
A.2d 105, 106-108 (where zoning ordinance provides for special
use and identifies requirements for obtaining such permit, board
cannot deny application because it does not like the esthetic
effect of the proposed apartment complex or because the board
does not believe the proposal presents a satisfactory image of
what apartments in the town should look like).
B
¶162 Our decision today would look considerably different
if we had taken our guidance from Bizzell instead of Delta
Biological. The logic behind Bizzell teaches us that (as
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relevant here) testimony related to a proposed use of property
has two distinct functional purposes depending on the stage of
the zoning process in which it is offered. One stage relates to
a municipality's adoption or amendment of a zoning ordinance.
The other relates to the consideration of an owner's application
for a use permit.
¶163 When the Trempealeau County Board writes its zoning
code, or considers amendments, the testimony it needs, and is
appropriate to consider, is whether a type of use is compatible
with a designated zoning district. This is the stage at which
the County has the greatest discretion in determining what may,
and may not, be allowed on various tracts of property. See Wis.
Stat. § 59.69(13) ("The powers granted in this section shall be
liberally construed in favor of the county exercising
them . . . ."); see also Cohen v. Dane Cty. Bd. of Adjustment,
74 Wis. 2d 87, 90, 246 N.W.2d 112 (1976). It is also the stage
at which it is necessary to draw most deeply on the wisdom,
experience, and discretion of the community and its
representatives. The community's testimony plays a key role in
answering these land-use questions wisely.
¶164 Once the County adopts its zoning code, however,
testimony about a proposed use has a narrower function. Its
purpose is to help the Committee determine whether the proposal
satisfies the parameters already adopted by the Trempealeau
County Board. And when the testimony relates to a "conditional
use," its function is to provide the information necessary to
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determine what conditions to impose on the use.8 In making this
determination, the Committee must interpret and apply the zoning
code with a bias towards the free use of property. See, e.g.,
Cohen, 74 Wis. 2d at 91 (zoning ordinances are to be construed
"in favor of the free use of private property.").
1
¶165 Consequently, the zoning ordinance's terms inform the
Committee of both the scope of its discretion, as well as the
type of testimony on which it may rely in considering an
application for a conditional use permit. The AllEnergy
Property bears the EA-2 zoning designation, which Trempealeau
County describes as follows:
This district preserves class I, II and III soils and
additional irrigated farmland from scattered
residential developments that would threaten the
future of agriculture in Trempealeau County. The
district is also established to preserve woodlands,
wetlands, natural areas and the rural atmosphere of
the County. . . .
Trempealeau County, Wis., Zoning Ordinance § 2.03(2). Chapter
13 of Trempealeau County's zoning ordinance makes non-ferrous
mineral mining a conditional use in the EA-2 district:
Non-metallic mining is a conditional use of land in
the EA, EA-2, PA and TA districts. In addition to
taking into consideration the general criteria
governing the granting of conditional use permits
under Sec. 10.04, the County shall specifically
8
It is conceivable that there could be no set of conditions
sufficient to control the potential adverse impacts of a
specific instantiation of a conditional use. However, the
Committee did not suggest that was the case, so this proposition
needs no further consideration here.
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analyze non-metallic mineral mining proposals in light
of the County's interest in providing for the wise use
of the natural resources of the county, aesthetic
implications of the siting of such a mine at a given
location and the impacts of such a mining operation on
the general health, safety and welfare of the public.
Each application shall be judge on its own merits.
Subject only to the standards set forth in this
section and in the zoning ordinance as a whole, it is
impossible to prescribe the criteria upon which such a
permit may be granted in each and every case.
Trempealeau County, Wis., Zoning Ordinance § 13.01.9
¶166 Bizzell says these zoning provisions establish that
the Trempealeau County Board has legislatively determined that
sand mining is not inherently inconsistent with the EA-2 zoning
district. See id., 311 Wis. 2d 1, ¶23. Bizzell also says we
must conclude from these provisions that sand mining is a type
of use sanctioned by the County Board and deemed desirable, or
necessary to the community, in this district. See id., ¶24.
¶167 Presumably, when the members of the Trempealeau County
Board authorized non-ferrous mineral mining as a conditional use
of the AllEnergy Property, it knew at least the basics about the
type of activity it was designating as sanctioned and either
necessary or desirable. I trust the members would not be
surprised to learn that sand mining will change the topography
of the property, alter the course of surface waters, create
dust, make the property unavailable for agricultural uses (at
9
I cite to Trempealeau County, Wis., Zoning Ordinance
§ 13.01 as it existed at the time AllEnergy filed its
conditional use application. That zoning ordinance, however,
has since been amended. All references to § 13.01 in this
dissent are to the version existing at the time AllEnergy filed
its application.
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least until remediation and maybe thereafter), and not
contribute to scenic beauty.
¶168 These are expected and necessary consequences of sand
mining, and are baked into the County Board's decision that sand
mining should nonetheless be allowed on the AllEnergy Property,
subject only to appropriate conditions. Just as a municipality
may not deny a conditional-use application for an ice-cream
parlor because the owner intends to have ice-cream on the
premises, the Committee may not deny AllEnergy's application
because his proposed use will comprise the essential
characteristics of a sand mine.
¶169 The people of Trempealeau County should be
congratulated on their interest in, and concern for, their
community. The testimony they offered was, for the most part,
relevant, instructive, and trenchant. Some of it, however,
related to the wisdom of the Trempealeau County Board's
determination that sand mining is a sanctioned and desirable or
necessary use in AllEnergy's zoning district.
¶170 Thus, for instance, various community members objected
to AllEnergy's proposal because it would affect the landscape,
detract from scenic beauty, impact the conservation of natural
resources, or eliminate their pastoral lifestyle. Members of
the Committee raised similar concerns. Committee member George
Brandt rejected AllEnergy's application, in part, because of
"the significant change to the landscape and to the local
cultural and social conditions." Committee member Ed Patzner
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frankly stated a sand mine is not compatible with this zoning
district:
Well, I represent the Farm Service Agency and I'm for
agriculture. Agriculture has a history of bringing
stability and jobs to our local economy, where sand
mines have a history of boom or bust on the local
economy, therefore destroying good productive
agricultural land is not a wise decision. We don't
want to destroy our outdoor recreation potential, like
hunting, biking and other activities that attract
visitors, retirees and people that love scenic beauty
who are close to work and live here.
Committee member Jeff Bawek was no less blunt in his conclusion
that a sand mine simply does not belong on the AllEnergy
Property:
Based on information given as referenced and my own
findings, along with public concerns given at this
meeting, this siting does not seem to be in the best
interest of our citizens nor in the best use of our
natural resources of Trempealeau County . . . . Trout
Run Creek and the close proximity to the Trempealeau
River deem this site as poor.
¶171 All of this testimony, and the concerns raised by the
Committee members, appear to be well-founded and offered in good
faith. But it is also all directed at a question they had no
authority to address. Trempealeau County has legislatively
disagreed with Mr. Bawek on whether a sand mine on the AllEnergy
Property is in the best interest of the community, or is a
"poor" site. Also, we should presume the County was aware of
the relative economic benefits of mines and farms (as described
by Mr. Patzner). But the County legislatively disagreed with
him as well. So, too, with Mr. Brandt's concern about the
cultural and social implications of developing a mine on the
AllEnergy Property. And the County surely knew, when it decided
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No. 2015AP491.dk
that a mine would be a necessary or desirable use of the
AllEnergy Property, that it would change the landscape, be less
attractive, and affect natural resources and recreational
activities.
¶172 The County knows a sand mine will do and be all these
things, but nonetheless declared them unobjectionable on the
AllEnergy Property. So although the testimony and concerns
described above are valid, they should have been raised when the
County was developing its zoning ordinance in the first place.
When, as here, the task is to apply the zoning decisions already
made to a conditional use permit application, the Committee
lacks authority to second-guess the County Board's legislative
decisions.
2
¶173 Whether the specific attributes of AllEnergy's
proposed mining operation would comply with all the necessary
criteria upon which a permit may be conditioned is a question of
an altogether different nature. Here, the Committee's specific
task was to decide whether the imposition of an appropriate set
of conditions could sufficiently control for the "special
problems and hazards" this type of use presents. See Bizzell,
311 Wis. 2d 1, ¶23; see also Halfway House v. City of Waukegan,
641 N.E.2d 1005 (Ill. App. Ct. 1994) (city could impose
reasonable conditions such as limiting halfway house to 32
residents); Council Rock Sch. Dist. v. Wrightstown Twp. Zoning
Hearing Bd., 709 A.2d 453 (Pa. Commw. Ct. 1998) (special
exception uses may require imposition of "reasonable conditions
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No. 2015AP491.dk
for the protection of the health, safety, and welfare of the
community which the applicant must meet"). The community's
concerns about AllEnergy's specific implementation of that use
are not only relevant, they are critical to the Committee's
deliberations over the permit application.
¶174 Although the community offered a wealth of information
relevant to this task, the Committee used it for the wrong
purpose. It should have used the testimony to determine what
specific standards AllEnergy would be required to satisfy before
obtaining a sand mining permit. Instead, the Committee used the
testimony to address a question already answered by the
Trempealeau County Board, to wit, whether it would be advisable
to operate a sand mine on the AllEnergy Property. That is a
legislative determination already settled by § 13.01 of the
zoning code, and the County Board settled it in AllEnergy's
favor.
¶175 The mismatch between the community's testimony and the
question the Committee answered becomes incandescent upon review
of the Committee's justification for denying AllEnergy's
application. Community members offered heartfelt and reasoned
input on the proposed mine's impact on nearby Trout Run Creek
and associated wetlands, surface water drainage, the health
effects of wind-borne dust, the potential consequence of
flooding in the vicinity, water quality, and the continued
viability of various ecosystems. As the court's opinion
demonstrates, each of these topics relates to standards the
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zoning code requires the Committee to consider in ruling on
AllEnergy's application.
¶176 But the Committee did not use the testimony to
determine what conditions it might be necessary to impose on
AllEnergy's planned use. It instead acted as though it was
determining, in the first instance, whether sand mining was
compatible with the AllEnergy Property. Committee member Kathy
Zeglin, for instance, said she had
numerous environmental concerns about the significant
wetlands in the area, the river at this point
historically was and is constantly changing it is very
hard to plan anything on a long range basis. I'm very
concerned with the water table in the area——it is very
high. I haven't been convinced that it will not be
disturbed.
Committee member George Brandt expressed similar concerns:
[T]he possibility of possible significant danger to
ground water, by processes involved in mining and
processing, and the high capacity well . . . .
[W]etland location is too close to sensitive water and
wildlife resources and number 2 is the possibility of
significant damage to groundwater by processes
involved in mining and high capacity well.
Committee member Ed Patzner noted "[t]here are health concerns
with mining so we need to protect our residents." And finally,
Committee member Jeff Bawek observed that "[s]oil around and in
the site bring into question the potential for water problems."
¶177 Each of these concerns is entirely legitimate. And if
the Committee had the authority to determine whether sand mining
should be listed as a conditional use in the zoning district
encompassing the AllEnergy Property, perhaps this would have led
them to say "no." But that was not its duty, and in acting as
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though it was, it exceeded its jurisdiction and usurped the
Trempealeau County Board's authority to answer that question.
II
¶178 There is some disagreement about how specific an
ordinance governing issuance of conditional use permits must be
to prevent arbitrary decision-making. We have recognized that
they at least "must be sufficiently specific . . . to allow for
judicial review." Bizzell, 311 Wis. 2d 1, ¶21 n.9 (citing 3
Kenneth H. Young, Anderson's American Law of Zoning § 21.09, at
709 (4th ed. 1996) (discussing the specificity of standards)).
An ordinance does not satisfy this requirement if it "'fails to
provide suitable standards where it confers on a board [ ]
"unlimited discretion to condition the issuance of the permit on
the basis of such norms or standards as it may from time to time
arbitrarily determine."'" Bizzell, 311 Wis. 2d 1, ¶21 n.9
(citing 3 Young at 711). Some courts strike ordinances as
insufficiently specific when they simply require that the
conditional use be in the "public interest," promote the
"general welfare," or are "'consistent with the purpose or
intent of the zoning ordinance.'" Bizzell, 311 Wis. 2d 1, ¶21
n.9 (quoting Daniel R. Mandelker & Michael Allan Wolf, Land Use
Law § 6.03, at 6-6 (5th ed. 2003) (one set of quotations
omitted); see, e.g., Clark v. Bd. of Appeals, 204 N.E.2d 434
(Mass. 1965) (rejecting zoning ordinance as too broad);
Fitanides v. Crowley, 467 A.2d 168 (Me. 1983) (finding portion
of zoning ordinance unconstitutional because it did not provide
the board with "specific guidelines that allow the board to
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determine what special characteristics of a proposed use render
it detrimental to the public health, safety or general welfare
of the neighborhood."). Others uphold similar ordinances,
citing the need for flexibility in the administration of
conditional use permits. Bizzell, 311 Wis. 2d 1, ¶21 n.9; see,
e.g., Burrell v. Lake Cty. Plan Comm'n, 624 N.E.2d 526 (Ind. Ct.
App. 1993)(concluding that that the complained of "health,
safety, and general welfare standard" was not improper); Schultz
v. Bd. of Adjustment, 139 N.W.2d 448 (Iowa 1966) (concluding
that a general zoning ordinance was "constitutionally adequate
and [gave] reasonably sufficient guidelines governing the grant
or denial of a conditional use permit for operation of a
sanitary landfill.").
¶179 The court's opinion today identifies a lengthy list of
standards AllEnergy must navigate en route to issuance of a
conditional use permit. Some are relatively specific.10 Others
For
10
example, Trempealeau County Zoning Ordinance
§ 10.04(5)(b) requires the Committee to consider, amongst other
criteria:
1. Whether the proposed project will adversely affect
property in the area.
2. Whether the proposed use is similar to other uses
in the area.
3. Whether the proposed project is consistent with
adopted Trempealeau County plans or any
officially adopted town plan.
. . . .
7. Whether the proposed use creates noise,
odor, or dust.
(continued)
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are as broad as those struck down in other jurisdictions.11
There may be legitimate debate about where to place each of
these standards on the continuum between "sufficiently specific"
and "unbridled discretion." But there should be no debate that
an explicit refusal to identify all of the applicable standards
rings the "unbridled discretion" bell, and smartly.
¶180 Whatever success Trempealeau County may have in
convincing us its standards are sufficiently specific, it
forfeits by giving itself an escape hatch so generous it makes
the standards superfluous. As our decision today acknowledges,
. . . .
11. Provision for proper surface water drainage.
. . . .
13. Whether the proposed project creates
excessive exterior lighting glare or
spillover onto neighboring properties.
. . . .
16. Whether the proposed project would adversely
affect any historic or archeological sites.
11
The Committee must assess an application for a sand
mining permit "in light of the County's interest in providing
for the wise use of the natural resources of the county,
aesthetic implications of the siting of such a mine at a given
location and the impacts of such a mining operation on the
general health, safety and welfare of the public." Trempealeau
County, Wis., Zoning Ordinance § 13.01. Nor may the Committee
issue a conditional use permit unless it first determines "the
proposed use at the proposed location will not be contrary to
the public interest and will not be detrimental or injurious to
the public health, public safety, or character of the
surrounding area." Trempealeau County, Wis., Zoning Ordinance
§ 10.04(5)(a).
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the Committee "is not limited to considering the factors
specified in the ordinance." Lead op., ¶41. Instead, it may
look to "additional factors as are deemed by it to be relevant
to its decision making process." Trempealeau County, Wis.,
Zoning Ordinance § 10.04(5)(b). This is not an isolated
sentiment——the County is committed to not letting the listed
standards cabin its discretion: "Subject only to the standards
set forth in this section and in the zoning ordinance as a
whole, it is impossible to prescribe the criteria upon which
such a permit may be granted in each and every case."
Trempealeau County, Wis., Zoning Ordinance § 13.01.
¶181 So the County reserves to itself the right to make up
the standards as it goes along. But the whole point of
requiring a set of knowable standards is to limit the bases on
which the County may deny a permit. As we noted in Bizzell, a
zoning ordinance may not confer on the County "unlimited
discretion to condition the issuance of the permit on the basis
of such norms or standards as it may from time to time
arbitrarily determine." Id., 311 Wis. 2d 1, ¶21 n.9 (quoting 3
Young, § 21.09 at 711) (internal marks omitted). This unbridled
discretion soundly defeats any attempt at judicial review. If
the Committee may announce a standard at the same time it rules
the applicant failed to satisfy it, what are we to review? How
closely the post hoc standard conforms to the evidence it was
designed to match? That's a rhetorical inquiry, not judicial
review.
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¶182 Ultimately, creating standards at will gives rise to
the same problem as the vague "wisdom" and "public interest"-
type standards. It forces permit applicants to play the "guess
what's in my head" game with the Committee. AllEnergy consulted
the ordinances in an attempt to discern what standards its
application must satisfy to get a conditional use permit from
the Committee. At the hearing, it listened as the Committee
members touched the ordinance talismans before voting against
the application. It learned the Committee members had concerns
about a sand mine's effect on wetlands, trout streams, soil,
beauty, recreation, topography, culture, and farming (to name a
few). What it did not learn was anything about why the
Committee members thought AllEnergy's specific proposal would
immanentize their concerns. Just as it had to guess at what
might cause the Committee to deny the application while drafting
it, AllEnergy must now retrospectively guess at what could be
done to allay the members' inchoate fears.
¶183 Not coincidentally, that is also what we must do. The
thing we are supposed to review is still secreted away in the
Committee members' minds. The generalized concerns they
expressed certainly track the ordinance's language, but our job
is not to evaluate whether they can repeat that language while
denying an application. It is to determine whether the
Committee properly measured AllEnergy's specific proposal
against knowable and certain standards, and then determined
whether the imposition of appropriate conditions would allow
implementation of the proposal while simultaneously protecting
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the public's legitimate interests. Only the Committee members
can know whether they did this, because no evidence of it made
its way into the record.
¶184 A proper record, and proper exercise of discretion,
would demonstrate the Committee actually engaged with the
specifics of AllEnergy's proposal, and then determined whether
appropriate conditions would protect against the hazards of this
type of conditional use. So for example, after identifying that
sand mines in general might threaten Trout Run Creek and
surrounding wetlands, the Committee should have informed
AllEnergy of the nature of the threat it feared and given it an
opportunity to develop an alleviating condition. Flooding is
apparently a recurrent event in this area, so the Committee
could have, and should have, required AllEnergy to develop a
condition that would control for such an eventuality. Blowing
dust consequent upon sand mining potentially has adverse health
effects, so the Committee should have required AllEnergy to
quantify the problem and propose a condition to address it. And
so on with each of the specific issues raised by the community
or Committee members. This is the Committee's core function,
and it was left undone.
¶185 Because the Committee did not complete its assigned
task, its decision to reject AllEnergy's application reflects an
exercise of will, not judgment. "Judgment" would have been the
result of applying the standards already adopted by the
Trempealeau County Board to the facts presented by AllEnergy's
application, including the determination that sand mining at
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this location is sanctioned and either necessary or desirable.
But the Committee jettisoned those standards. And with respect
to the exceedingly vague "public interest" and "wisdom"
standards, it required AllEnergy to guess at what specific
aspects of a sand mine would cause concern for its members. And
then it required AllEnergy to guess at what might be necessary
to allay those concerns. Wherever the arbitrary and capricious
line might lie, "Guess what's in my head" certainly falls on the
wrong side of it.
¶186 Because of this, we (along with AllEnergy) must guess
at whether the imposition of conditions on AllEnergy's proposed
sand mine would be capable of properly controlling the hazards
incident to such a use. So our decision today does not actually
review whether the Committee properly considered an application
for a conditional use permit. It reviews whether the Committee
expressed sufficient misgivings about mining for sand on the
AllEnergy Property. Because the Committee addressed itself to a
question outside its jurisdiction, and because its failure to
complete its task made its decision arbitrary and capricious, we
should have reversed the decision and remanded for further
proceedings. Because we did not, I respectfully dissent.
¶187 I am authorized to state that Justices MICHAEL J.
GABLEMAN and REBECCA GRASSL BRADLEY join this dissent.
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1
AllEnergy Corporation v. Trempealeau County Environment & Land Use Committee
Court: Wisconsin Supreme Court
Date filed: 2017-05-31
Citations: 375 Wis. 2d 329, 2017 WI 52
Copy CitationsCombined Opinion