847 N.W.2d 881
Wis. Ct. App.2014Background
- O'Connor appeals an order affirming the Buffalo County Board of Adjustment's grant of a CUP to R&J Rolling Acres for a frac sand mine in an agricultural district.
- R&J applied January 13, 2012 for a CUP to establish a frac sand mining operation, identifying Glacier Sands, LLC as the developer.
- Public traffic concerns, especially on Highway 88, influenced the Board's initial denial of the first CUP after a March 8, 2012, meeting.
- R&J submitted a second CUP application on March 27, 2012, correcting a word, increasing trucks to 126 per day, and proposing six days of hauling.
- A DOT Traffic Safety Impact Assessment was requested and later updated; the Board granted the second CUP on June 27, 2012, with 43 conditions limiting trucks to 105 per day and prohibiting weekend/holiday hauling.
- O'Connor and Glacier Sands were later consolidated in certiorari challenges; the circuit court affirmed the Board, and O'Connor appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §41(1) allows frac sand mining as a CUP in the agricultural district. | O'Connor: language of §41(1) restricts to aggregate-related mining; frac sand not included. | Board: phrase 'for aggregate purposes' modifies only 'quarrying of limestone and other rock,' allowing frac sand mining as a CUP. | Reasonable Board interpretation; frac sand mining may be a CUP under §41(1). |
| Whether the Board could consider the second CUP after denying the first. | O'Connor: after denial, R&J's merits cannot be reconsidered; certiorari is exclusive remedy. | Board may entertain a second CUP application; no rule prohibits it absent substantial change in circumstances. | Board properly considered the second CUP; no exclusive-bar rule applied. |
| Whether lack of partner identities for R&J invalidates the CUP or its enforceability. | O'Connor: service and enforceability require knowing R&J's partners; potential enforcement problems. | Alternative enforcement mechanisms exist; lack of disclosed partners does not render CUP void. | Not arbitrary or outside jurisdiction; other enforcement tools suffice; argument rejected. |
Key Cases Cited
- State v. Ozaukee Cnty. Bd. of Adjust., 152 Wis. 2d 552 (Ct. App. 1989) (standard for ordinance interpretation with deferential review on certiorari)
- Ottman v. Town of Primrose, 2011 WI 18 (2011) (defers to Board's reasonable interpretation of ordinance)
- Jefferson County v. Timmel, 261 Wis. 39 (1952) (exclusive remedy rule for appeals to Board of Adjustment?)
- Lindas v. Cady, 183 Wis. 2d 547 (1994) (claim preclusion analysis in agency contexts)
- Barber v. Weber, 2006 WI App 88 (2006) (claim preclusion and related litigation principles in zoning)
- State v. Kenosha Cnty. Bd. of Adjust., 218 Wis. 2d 396 (1998) (boards have broad quasi-judicial authority to grant variances)
- Outagamie Cnty. Bd. of Adjust., 2001 WI 78 (2001) (quasi-judicial authority of boards of adjustment)