Posted by: Patricia Salkin | June 3, 2017

WI Supreme Court Finds County Land Use Committee was Within Its Jurisdiction in Denying a Conditional Use Permit to a Fracking Company

AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC (collectively AllEnergy) located a site in the Town of Arcadia in Trempealeau County for a frac sand mine. The site was 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 agriculture …” and “to preserve woodlands, wetlands, natural areas and the rural atmosphere of the County.” The Trempealeau County Environment & Land Use Committee’s denied AllEnergy’s application for a conditional use permit for non-metallic mineral mining. The non-metallic mineral mining in this case was the mining, processing and transporting silica sand used in hydraulic fracturing (fracking). 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 to the court of appeals; and then sought review of the decision of the court of appeals.
On appeal, AllEnergy argued that Trempealeau County Environment & Land Use Committee, an appointed body without the power to legislate, exceeded its jurisdiction by denying a conditional use permit based on broad legislative concerns over the public health, safety, and welfare. The Trempealeau County Zoning Ordinance, enacted by the Trempealeau County Board of Supervisors, 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 directed the Committee to approve conditional use permits only if it determined 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.”
Here, in deciding whether to grant AllEnergy a conditional use permit, the Trempealeau County Environment & Land Use Committee considered the criteria set forth in the ordinance. Moreover, each member of the Trempealeau County Environment & Land Use Committee who voted against granting AllEnergy’s application stated his or her reasons for doing so. The court found that because the Trempealeau County Environment & Land Use Committee considered the factors the Trempealeau County Board of Supervisors directed the Committee to consider, the Committee kept within its jurisdiction, and substantial evidence existed to support the Trempealeau County Environment & Land Use Committee’s decision to deny AllEnergy’s application for a conditional use permit.
AllEnergy Corporation and  AllEnergy Silica v Trempealeau County Environment and Land Use Committee, 2017 WL 2349200 (WI 5/31/2017)


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