Posted by: Patricia Salkin | July 20, 2016

WI Appeals Court Affirms Denial of Conditional Use Permit for Frac Sand Mine

On July 23, 2013, Gerald and Cheryl Earney, the Mississippi Land Connection and Timber Company, LLC, and Wisconsin Bluff Sands, LLC (f/k/a Badger Bluff Sands, LLC) (collectively “Earney”), filed a Conditional Use Permit (CUP)  application for a nonmetallic mine and wet processing facility to be located on the Schoepps Valley Road in Waumandee. Earney sought to mine industrial sand for “gas and/or oil production and potential unknown markets.” In this case, Earney appealed an order affirming, on certiorari review, the Buffalo County Board of Adjustment’s decision to deny Earney’s application for a CUP to operate a frac sand mine in the town of Waumandee.

On appeal, Earney contended that the Board erroneously denied the CUP application based upon “reclamation standards prohibited by state law and upon road issues it had agreed not to consider.” Earney also contends that the Board was equitably estopped from considering the potential impact of the mining project on the Schoepps Valley Road. Here, the Board did not erroneously consider the environmental issues addressed by the reclamation plan, since the zoning ordinance at issue required the Board to consider a wide range of factors when determining whether to grant a nonmetallic mining CUP, including factors pertaining to topography, soil erosion, and drainage. Furthermore, even assuming that the elements of estoppel were met, the court concluded that the Board still acted within its jurisdiction, as the Board considered all seven of the factors outlined by the Buffalo County Zoning Ordinance and rejected the CUP application for numerous reasons—not just considerations pertaining to the road. The decision below upholding the denial of the CUP was affirmed.

State of Wisconsin ex rel Eavney v Buffalo County Board of Adjustment, 2016 WL 3884048 (WI App. 7/19/2016)

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