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

• Decision Date: 10 May 2016
• Docket Number: No. 2015AP491.,2015AP491.
• Citation: 881 N.W.2d 358 (Table),370 Wis.2d 261
• Parties: ALLENERGY CORPORATION and AllEnergy Silica, Arcadia, LLC, Petitioners–Appellants, v. TREMPEALEAU COUNTY ENVIRONMENT & LAND USE COMMITTEE, Respondent–Respondent.
• Court: Wisconsin Court of Appeals

370 Wis.2d 261

881 N.W.2d 358 (Table)

ALLENERGY CORPORATION and AllEnergy Silica, Arcadia, LLC, Petitioners–Appellants,

v.TREMPEALEAU COUNTY ENVIRONMENT & LAND USE COMMITTEE, Respondent–Respondent.

No. 2015AP491.

Court of Appeals of Wisconsin.

May 10, 2016.

¶ 1 PER CURIAM.

AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC (collectively AllEnergy) appeal an order affirming, on certiorari review, the Trempealeau County Environment & Land Use Committee's decision to deny AllEnergy's application for a conditional use permit (CUP) to establish a silica sand mine. AllEnergy raises a large number of arguments on appeal. Like the circuit court, we reject AllEnergy's arguments and conclude the Committee did not exceed its jurisdiction, proceeded on a correct theory of law, did not act arbitrarily, and its decision was supported by substantial evidence. Accordingly, we affirm.

BACKGROUND

¶ 2 AllEnergy submitted a CUP application for a non-metallic mine to the Trempealeau County Zoning Administrator on August 2, 2013. AllEnergy sought to mine, process, and transport silica sand, which is used in hydraulic fracturing, or “fracking.” The proposed mining area was approximately 265 acres located in an agricultural zoning district in the Town of Arcadia. Non-metallic mining within that zoning district is a conditional use, requiring any person or entity seeking to operate such a mine to obtain a CUP from the Committee.

¶ 3 Trempealeau County's Department of Land Management initially reviewed AllEnergy's application and referred it to a contracted engineering company for third-party review. The review noted numerous deficiencies in the application, and AllEnergy provided two written responses. The Department deemed AllEnergy's application “complete” on August 27, 2013. AllEnergy's application was submitted approximately one month before Trempealeau County adopted a one-year moratorium on new non-metallic mines in order to study the health and environmental effects of the numerous sand mines that had located in the area since 2010.

¶ 4 The Committee held a public hearing on AllEnergy's application at its regular meeting on October 9, 2013. AllEnergy representatives and its retained experts gave a presentation summarizing the proposed mining operation. The meeting was then opened to public comment, and staff read into the record letters and emails the county had received both in support of and in opposition to AllEnergy's proposal. While those in favor of the project principally signaled their support through form letters with little or no further comment, the vast majority of those who attended the meeting and offered comments were opposed to granting the CUP. AllEnergy was permitted to respond to matters raised during the public comment portion of the hearing before the Committee began deliberating on the matter.

¶ 5 During deliberations, the Committee reviewed the standards for granting a non-metallic mining CUP, which are primarily contained in Trempealeau County Comprehensive Zoning Ordinance §§ 10.04(5) and 13.03(3).¹ The Committee considered twenty-three conditions recommended by the Town of Arcadia Board of Supervisors; the Committee struck six of these and deemed appropriate the remaining seventeen conditions, some with modifications. The Committee also determined eighteen CUP conditions recommended by county staff were appropriate, as well as two additional conditions relating to land reclamation. The Committee then voted seven-to-one to adopt the conditions as discussed.

¶ 6 Immediately after voting on the conditions attendant to the potential CUP, the Committee considered whether to approve AllEnergy's application. The motion to approve the application failed on a five-to-three vote, after which the Committee members voting against the application explained their reasons for doing so on the record. AllEnergy filed a petition for certiorari review of the Committee's decision in the circuit court, which the court denied. AllEnergy appeals.

DISCUSSION

¶ 7 A person aggrieved by the denial of a conditional use permit may commence an action against the municipality “seeking the remedy available by certiorari.” Wis. Stat. § 59.694(10).² When no additional evidence is taken,³ statutory certiorari review is limited to whether the government authority:

(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 the evidence.”

Hegwood v. Town of Eagle Zoning Bd. of Appeals, 2013 WI App 118, ¶ 5, 351 Wis.2d 196, 839 N.W.2d 111 (quoting Murr v. St. Croix Cty. Bd. of Adjustment, 2011 WI App 29, ¶ 7, 332 Wis.2d 172, 796 N.W.2d 837 ). We must accord a presumption of correctness and validity to the Committee's decision. See State ex rel. Ziervogel v. Washington Cty. Bd. of Adjustment, 2004 WI 23, ¶ 13, 269 Wis.2d 549, 676 N.W.2d 401.

¶ 8 Many of AllEnergy's arguments are, in effect, arguments that the Committee simply made the wrong decision. In particular, AllEnergy argues it “offered substantial evidence in support of the Ordinance criteria and is entitled to a CUP.” This argument misapprehends our standard of review. The substantial evidence test is “highly deferential” to the Committee's findings, and we may not substitute our view of the evidence for the Committee's when reviewing the sufficiency of the evidence on certiorari. See Clark v. Waupaca Cty. Bd. of Adjustment, 186 Wis.2d 300, 304, 519 N.W.2d 782 (Ct.App.1994) (citing Van Ermen v. DHSS, 84 Wis.2d 57, 64, 267 N.W.2d 17 (1978) ). If any reasonable view of the evidence would sustain the Committee's findings, they are conclusive. Id. at 304–05, 519 N.W.2d 782 (citing Nufer v. Village Bd., 92 Wis.2d 289, 301, 284 N.W.2d 649 (1979) ). “Even if we would not have made the same decision, in the absence of statutory authorization, we cannot substitute our judgment for that of the zoning authority.” Id. at 305, 519 N.W.2d 782 (citing Buhler v. Racine Cty., 33 Wis.2d 137, 146–47, 146 N.W.2d 403 (1966) ). Thus, the circuit court correctly recognized that “[w]hether AllEnergy provided substantial evidence on which the CUP could have been granted is irrelevant.”⁴

¶ 9 We conclude the Committee's decision was supported by substantial evidence. “ ‘Substantial evidence’ is evidence of such convincing power that reasonable persons could reach the same decision as the board.” Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶ 43, 362 Wis.2d 290, 865 N.W.2d 162 (quoting Clark, 186 Wis.2d at 304, 519 N.W.2d 782 ). Substantial evidence is less than a preponderance of the evidence, but more than a mere scintilla of evidence, and more than conjecture, speculation or uncorroborated hearsay. Id. (citing Smith v. City of Milwaukee, 2014 WI App 95, ¶ 22, 356 Wis.2d 779, 854 N.W.2d 857, and Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16, ¶ 48, 278 Wis.2d 111, 692 N.W.2d 572 ). We review the evidence in context, taking into account all evidence in the record. Id., ¶ 45. However, “the weight to accord the evidence lies within the discretion of the municipality.” Id., ¶ 44.

¶ 10 The zoning ordinance at issue here gives the Committee broad discretion to consider a wide range of factors when determining whether to grant a non-metallic mining CUP. The general standards applicable to all CUP requests are as follows:

The Zoning Committee shall 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. In approving conditional uses, the Zoning Committee also shall determine 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.

Trempealeau County Comprehensive Zoning Ordinance § 10.04(5)(a). The Committee is authorized to consider sixteen specific factors, including adverse effects on property in the area; noise, odor or dust that will be created by the project; whether the project ensures proper surface water drainage; a change in the natural character of the area through the removal of natural vegetation or altering of the topography; and whether the project would adversely affect the area's natural beauty. Id., § 10.04(5)(b)1.–16. The Committee is not limited to these factors and may consider “additional factors as are deemed by it to be relevant to its decision making process.” Id., § 10.04(5)(b).

¶ 11 Zoning considerations for non-metallic mining specifically are set forth in Trempealeau County Comprehensive Zoning Ordinance ch. 13. In addition to the general criteria governing the granting of CUPs, the Committee is required to analyze proposals for non-metallic mining in light of the “County's interest in providing for the wise use of the natural resources of the county, aesthetic implications of the siting of such a mine at a given location and the impacts of such a mining operation on the general health, safety and welfare of the public.” Trempealeau County Comprehensive Zoning Ordinance § 13.01. The zoning ordinance further provides:

(a) When considering an application for a non-metallic mineral mine permit, the County shall consider, among other factors, the following: the effect or impact of the proposed operation upon; (1) public infrastructure, including but not limited to streets and highways, schools and other public facilities; (2) present and proposed uses of land in the vicinity of the proposed operation; (3) surface water drainage, water quality and supply; (4) soil erosion; (5) aesthetics, including but not limited to scenic beauty and the conservation of natural resources of outstanding quality or uniqueness; (6) the market value of lands in the vicinity of the proposed operation; (7) the physical practicality of

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