Allenergy Corp. v. Trempealeau Cnty. Env't & Land Use Comm.

• Court: United States State Supreme Court of Wisconsin
• Citation: 2017 WI 52,375 Wis.2d 329,895 N.W.2d 368
• Docket Number: No. 2015AP491,2015AP491
• Parties: ALLENERGY CORPORATION and AllEnergy Silica, Arcadia, LLC, Petitioners-Appellants-Petitioners, v. TREMPEALEAU COUNTY ENVIRONMENT & LAND USE COMMITTEE, Respondent-Respondent.
• Decision Date: 31 May 2017

375 Wis.2d 329
895 N.W.2d 368
2017 WI 52

ALLENERGY CORPORATION and AllEnergy Silica, Arcadia, LLC, Petitioners-Appellants-Petitioners,
v.
TREMPEALEAU COUNTY ENVIRONMENT & LAND USE COMMITTEE, Respondent-Respondent.

No. 2015AP491

Supreme Court of Wisconsin.

Oral Argument: January 11, 2017
Opinion Filed: May 31, 2017

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.

SHIRLEY S. ABRAHAMSON, J.¹

375 Wis.2d 337

¶1 This is a review of an unpublished decision of the court of appeals affirming an order of the circuit court for Trempealeau County, La Crosse County Circuit Court Judge Elliott M. Levine,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

375 Wis.2d 338

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 to the court of appeals; and then sought review of the decision of the court of appeals in this court.³

895 N.W.2d 373

¶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

375 Wis.2d 339

can be adopted that address potentially-adverse impacts from the use?⁴

¶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.

375 Wis.2d 340

¶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.

¶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

895 N.W.2d 374

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 limited to whether the Trempealeau County Environment & Land Use Committee:

375 Wis.2d 341

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 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

375 Wis.2d 342

the Committee's determination was reasonable, had a rational basis, and was supported by substantial evidence.⁹

895 N.W.2d 375

¶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.

¶10 For the reasons set forth, we conclude as follows:

I. The Trempealeau County Environment & Land Use Committee applied the factors and considerations

375 Wis.2d 343

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 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

375 Wis.2d 344

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

895 N.W.2d 376

that would threaten the future of agriculture ..." and "to preserve woodlands, wetlands, natural areas and the rural atmosphere of the County."¹²

¶14 Because non-metallic...