Claim preclusion not applicable to second application for conditional use permit for frac sand mining

by Gary Taylor

O’Connor v. Buffalo County Board of Adjustment and Glacier Sands, LLC
(Wisconsin Court of Appeals, April 22, 2014)

On January 13, 2012, R&J Rolling Acres (R&J) applied to Buffalo County for a conditional use permit to establish a frac sand mining operation on property zoned Agricultural.  The application identified R&J as the “owner” of the property and Glacier Sands, LLC, as the “developer.” Among the application materials was included a map showing the proposed route trucks would use to travel to and from the property.  R&J asserted the haul route would be “south on [State Highway] 88 to [State Highway] 35,” and that an estimated 80 trucks would leave the property via this route every weekday.  In February 2012 the Buffalo County Board of Adjustment (Board) held a public hearing on the application, which was continued to Marc.  Numerous people spoke up at the hearings about issues related to traffic safety on Highway 88, especially after R&J clarified it expected 126 trucks to leave the site each day instead of 80. At the end of the meeting, the Board voted 2-1 to deny R&J’s application. In its written decision issued March 29, the only reason the Board identified for denying the application was its concern that the large number of trucks leaving the mine site each day would decrease traffic safety on Highway 88. 

R&J did not seek circuit court review of the Board’s decision.  Instead, on March 27, 2012, R&J submitted a second CUP application.  The second application was identical to the first, except that it corrected a misspelled word, changed the proposed number of trucks leaving the site from 80 per day to 126, and proposed to have trucks hauling six days per week instead of five.  After a hearing (continued twice to obtain and digest a traffic study from the Wisconsin DOT), the Board granted the second conditional use permit request subject to 43 conditions. Two conditions were to limit to 105 the number of truck loads laving the site daily, and to prohibit hauling on weekends and holidays.  The Board’s written decision was similar to the earlier written denial, except that the Board explained:

The Wisconsin DOT Northwest Region contracted with AECOM to conduct a “Traffic Safety Impact Assessment” for [Highway 88] during May and June of 2012 in light of the potential increase in truck volume on [Highway 88] from proposed, new non-metallic mine operations in the area.  Representatives of the DOT were present at the hearings/meetings to present the initial as well as updated results of their assessment and answer questions.  Specifically, AECOM addressed crashes and crash rates as well as geometric and operational features pertaining to [Highway 88].  Overall, the [DOT] acknowledges that [Highway 88] may have some substandard features, but believes the road can handle increased traffic volumes.

O’Connor, one of the citizens opposing the permit, filed suit, claiming that the Board erred in two respects:  (1) the Buffalo County zoning ordinance does not allow frac sand mining as a conditional use in the agricultural district; and (2) after the Board denied R&J’s first CUP application, it was prohibited from considering the merits of R&J’s second application. 

Frac sand mining as a conditional use.  The Court of Appeals reviewed the Buffalo County zoning ordinance and found that it allows as a conditional use “[m]anufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel and the quarrying of limestone and other rock for aggregate purposes, including the erection of buildings, and the installation of necessary machinery and equipment incidental thereto, but not the storage of cement, asphalt, or road oils or the mixing of concrete or black top or related materials, provided that any county, town, or municipal government or its agent may store or mix such materials when incidental to the improvement of highways or streets.”  O’Connor argued that because frac sand mines do not extract sand “for aggregate purposes,” they are not allowed as conditional uses.  The Board argued that the phrase “for aggregate purposes” referred only to “the quarrying of limestone and other rock,” and therefore “manufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel” was allowed.  Finding both interpretations reasonable, the Court deferred to the Board’s interpretation because under prior caselaw the Board’s decision is entitled to a presumption of correctness.

Consideration of second application.  O’Connor asserted that, after the Board denied R&J’s first application, R&J’s “sole remedy … was to commence a certiorari action in the circuit court.”  The Court disagreed.  It noted that a county may enact a rule prohibiting a party whose application to the zoning board has been denied from filing a new application absent a substantial change in circumstances, but Buffalo County has not done so.  Absent such a rule, an individual is free to submit a second conditional use permit application after the first has been denied, as long as he or she is willing to pay a second application fee.  The Court rejected O’Connor’s assertion that the Court’s conclusion places an unfair burden on those opposing the application and creates an uneven playing field.  “Filing successive applications clearly places a significant burden on the  applicant, as well as those opposing the application.  For each additional application, the applicant must pay an additional review fee.  The applicant must spend time preparing a new application and appearing at new hearings before the board of adjustment.  If the board ultimately grants a successive application, the applicant then faces the prospect that opponents will file an action for certiorari review, in which the applicant will likely choose to participate to defend the permit.”

Alternatively, O’Connor relied on the doctrine of claim preclusion.  “Claim preclusion provides that a ‘final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences.The doctrine has three elements:  (1) identity between the parties or their privies in the prior and present suits, (2) prior litigation that resulted in a final judgment on the merits by a court with jurisdiction, and (3) identity of the causes of action in the two suits.”  In questioning whether the doctrine extends beyond judicial judgments, neither O’Connor nor the Court could cite any Wisconsin case holding that a board of adjustment’s unreviewed denial of an application precludes it from considering a subsequent application submitted by the same party.  Indeed, the Court again pointed to the existence of local rules prohibiting successive applications in support of its conclusion that claim preclusion did not bar the Board in this case from considering R&J’s second CUP application.  “If claim preclusion operated to bar zoning boards from considering successive applications, there would be no need for these successive application rules.”

The Court affirmed the Board’s decision to grant the conditional use permit.

 

 

News from around Wisconsin: Legislative proposal prevents new regulation of existing sand mines

The need for fracking sand has created intense pressure to open new sand mines and expand operations in existing mines in many Midwestern states.  In the Wisconsin legislature, a new bill would prohibit local governments from imposing new zoning ordinances that are more restrictive than existing zoning rules on existing operations. The bill also would shield sand mines from any other new ordinance or license requirement if the mines are operating within the year preceding the ordinance or requirement’s adoption.

The full article from Fox 11 News website in Madison is here.

Wisconsin town’s non-metallic mining ordinance is not zoning

by Victoria Heldt

Zwiefelhofer, et al., v. Town of Cooks Valley
(Supreme Court of Wisconsin, February 8, 2012)

The plaintiffs in this case (Zweifelhofer, Schindler, Sarauer, and La Gesse) are all residents of Cooks Valley.  In 2008, the Town adopted a Nonmetallic Mining Ordinance that prohibited nonmetallic mining unless a permit was obtained from the Town Board.  The plaintiffs, who have all engaged in nonmetallic mining in the past, sought to have the Ordinance declared invalid in the event that they want to engage in nonmetallic mining in the future.  Their argument claimed the Ordinance was invalid because it did not have the approval of the County Board.  In the Town of Cooks Valley, zoning ordinances must gain approval of the Board.  The Town claims that the ordinance is not a zoning ordinance, but rather an exercise of its police power.  Consequently, they argue that the ordinance does not require approval of the Board.  The Court had to discern whether the Ordinance constituted a zoning ordinance or an exercise of the Town’s police power.

The Ordinance begins with a preamble stating that the intent of the statute is to “promote the health, safety, prosperity, aesthetics, and the general welfare of the people and communities.”  Specifically, it attempts to regulate land mining so as to protect the population from disease and pestilence and to further the conservation of land and water use.  It describes nonmetallic mining as commercial land and mining pits and all activities associated with it.  The Ordinance allows for nonmetallic mining only if a permit is obtained from the Town Board.  The Town may place a number of restrictions on any nonmetallic mining permit that it issues.  The Ordinance does not apply to previously existing mines, but does apply to the expansion of any existent mines.

The Court conceded that the line between a zoning ordinance and a building code enacted pursuant to a Town’s police power is fine and that the two are similar in nature.  Wis. Stat. §62.23 (7) governs zoning and, within the statute, the grant of zoning power overlaps with police power.  Zoning is a subset of the police power.   In addition, both powers serve the same general purpose of promoting the health, safety, and welfare of the community.  In its analysis, the Court compared the characteristics of the Ordinance to those of typical zoning ordinances to determine whether the Ordinance in question is a zoning or non-zoning ordinance.  It identified and focused on six main criteria.

First, the Court recognized that zoning ordinances typically divide property into separate zones or districts.  The Ordinance in question does not.  It applies universally to all land within the Town.  Second, zoning ordinances usually allow explicitly stated uses and prohibit those not stated.  The Town’s nonmetallic ordinance does not permit anything as of right or automatically prohibit anything since a permit could be obtained to engage in nonmetallic mining.  Third, a zoning ordinance typically regulates where an activity takes place, not the activity itself.  This Ordinance is comparable to a license in that it regulates an entire activity and not the location of the activity.

The fourth criterion that the Court focused on was a zoning ordinance’s tendency to comprehensively address all possible uses of a specified area of land.  The Wisconsin Attorney General was quoted as saying “The more comprehensive the ordinance, the more likely it will be characterized by a court as a zoning ordinance.”  The Town’s ordinance applies to only one activity – nonmetallic mining.  The plaintiffs argued that, since the Ordinance comprehensively regulates nonmetallic mining, it should be considered comprehensive.  The Court clarified that the term “comprehensive” should not be interpreted as “thoroughly” regulating a single activity for the purpose of zoning ordinances.  It is intended to mean all-inclusive.  The plaintiffs and some friend-of-the court briefs attempted to argue that the Ordinance is a zoning ordinance because it “pervasively” regulates the use of land.  They look to a previous case in which the Attorney General stated “when an ordinance constitutes a pervasive regulation of, and in many instances a prohibition on the use of, land, [it must be concluded] that such an ordinance is a zoning ordinance which requires county board approval.”  The Court in this case deemed the phrase “pervasive regulation” as over-inclusive in application.  It noted that the phrase does not create an effective bright-line rule to guide the Court.

The fifth criterion was that zoning ordinances operate by fixed rules that allow many land uses to proceed without discretionary decisions by administrative officials (i.e., permitted uses).  The Ordinance in question, conversely, operates only on a case-by-case basis and does not allow any non-metallic mining operation to proceed without administrative action.  The plaintiffs urge that the Ordinance must be a zoning ordinance because it allows for “conditional use” permits, which have historically been associated with zoning ordinances.  The Court said that that logic placed too much emphasis on the terminology of the Ordinance.  Licenses required under non-zoning police powers could also be considered similar to conditional use permits.  Just because the language of the Ordinance includes the phrase “conditional use permit” does not mean it is a zoning ordinance.

The sixth and final criterion addressed a zoning ordinance’s tendency to exempt pre-existing activities from the new regulation.  In this way, the Ordinance in question is similar to zoning ordinances because it does not apply to pre-existing nonmetallic mines.  The Court noted that the differences between the characteristics of the Town’s nonmetallic mining ordinance and those of typical zoning ordinances exceeded the similarities.

The Court finally looked to the general purpose of zoning ordinances in comparison to the general purpose of the Town’s nonmetallic mining ordinance.  The Court acknowledged that, in a broad sense, the Ordinance has the same purpose as that of zoning ordinances (to promote the welfare of the community as a whole); however, this broad definition of purpose is not helpful in an analysis of whether an ordinance is zoning or non-zoning.  It looked instead to the more specific purpose of zoning ordinances to “separate incompatible land uses.”  The Ordinance does not share that purpose in that it does not explicitly separate different land uses or declare any land uses incompatible with others.

After looking to the Ordinance’s specific characteristics and its general purpose, the Court concluded that the Town’s non-metallic mining ordinance is not a zoning ordinance, but rather a general welfare ordinance enacted pursuant to the Town’s police powers.  Consequently, it did not require the Board’s approval and is therefore valid as enacted.  The Court reversed the lower court’s decision.

Board of adjustment given substantial latitude in interpreting county ordinance

by Allison Arends

James C. Rule v. Iowa County Board of Adjustment
(Wisconsin Court of Appeals, March 18, 2010)

James Rule owned two parcels of land in the Town (township) of Dodgeville Iowa County, both of which were zoned A-1, Exclusive Agricultural. Quarrying operations are allowed in A-1 with a conditional use permit.  Rule operated a quarry operation on one of the parcels of land and planned to extend his operation to his adjacent property, but was required to first apply for a conditional use permit in order to begin mining. Before applying, Rule sought to determine whether the Board would waive one of the Iowa County Zoning ordinance provisions which stated, “active mining shall not take place within five hundred feet of any residential district or any structure used for dwelling purposes.”

Rule filed an application with the Board requesting a variance that allowed mining at least 200 feet from the residential district boundary or 500 feet from a residential dwelling. Rule’s interpretation of the ordinance was that the active mining had to be at least 500 feet from either the residential district boundary or a dwelling. Neighboring property owners objected to Rules application for two reasons, (1) the variance requested was a use variance, not an area variance, which the Board does not have authority to grant and (2) the ordinance dictates that active mining must be at least 500 feet from the boundary line of a residential district and not from the dwellings within the district.

At the hearing, the Board heard position statements from both parties as well as a legal opinion from the Iowa County attorney. The attorney concluded Rule’s petition to be for a use variance and therefore, in his opinion, the Board did not have authority to grant the permit. The attorney also noted that active mining, under the ordinance, must be a minimum of 500 feet from a residential district boundary line, not the dwellings within that district. Based on the attorney’s opinion the Board voted, “to deny the application for non-metallic mining within 500 feet of the residential district.” The circuit court affirmed the Board’s decision.

On appeal, Rule contested the Board and circuit court’s decisions that he sought a use variance instead of an area variance, and their construction of the 500-foot requirement. Rule argued that he was seeking an area variance because he was looking to only modify the “area restriction” created by the condition (4)(b) of the AB-1 subsection. The court first evaluated how much deference a county board of adjustment’s has in the interpretation of a county ordinance, and concluded that the board’s construction of the ordinance is lawful if it is reasonable and there is not a more reasonable interpretation.

In order to determine whether the Board erred in identifying Rule’s petition as a use variance, the court looked to the distinction between the two types of variances:

“A use variance is one that permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance … has no relationship to a change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of a zoning ordinance. Area variances usually modify such features as setbacks, frontage requirements, height, or lot size”

Because a use variance has more of an impact on a community than an area variance, the standards for obtaining a use variance are higher, and the property owner must show that, “in absence of a variance, no reasonable or feasible use can be made of the property.” the court found the Board’s decision, which identified Rule’s requested variance as a use variance, to be reasonable because, “the 500-foot requirement was intended to protect the neighboring residential properties from the significant impact of a mining operation and that this purpose distinguishes it from restricting on building heights and set backs, which are typically the subject of area variances.”

In response to Rule’s second claim, the court found that the Board was reasonable in its construction of the ordinance, which recognized that active mining must be at least 500 feet away from a residential district boundary line or any dwelling which is not located within a residential boundary line. The court found Rule’s construction of the ordinance unreasonable because the obvious purpose of the ordinance is to protect neighboring residences from the disturbances of quarry operation. The court found that it is reasonable to ensure that all dwellings in a residential district, even those that are not yet built, are protected by a 500-foot buffer zone.

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