Stop Ongoing Mine Permit and Frank Stoffel v. Town of Ashford Board of Appeals, 061219 WICA, 2018AP1843
| Opinion Judge | PER CURIAM. |
| Party Name | Stop the Ongoing Mine Permit and Frank Stoffel, Plaintiffs-Appellants, v. Town of Ashford Board of Appeals and Batzler Trucking, Inc., Defendants-Respondents. |
| Judge Panel | Before Neubauer, C.J., Reilly, P.J., and Gundrum, J. |
| Case Date | June 12, 2019 |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from an order of the circuit court for Fond du Lac County: No. 2016CV380, PETER L. GRIMM, Judge.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
PER CURIAM.
¶1 Stop the Ongoing Mine Permit (STOMP) appeals from an order of the circuit court affirming, on certiorari review, the Town of Ashford Board of Appeals' (BOA) decision to grant Batzler Trucking, Inc. a conditional use permit[1] to operate an agricultural sand mine in the Town of Ashford. STOMP argues that the BOA's decision was not supported by substantial evidence. Like the circuit court, we reject STOMP's arguments and conclude the BOA 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.
¶2 In April 2016, Batzler applied for a conditional use permit to allow the operation of a nonmetallic mine (sand pit) within two parcels of land subject to a lease agreement between Batzler and the property owner.[2] The extracted agricultural sand is used by dairy farmers. The sand pit is "located within an area of predominately agricultural land use," as well as some single family residential use. STOMP is an unincorporated association established by several Town of Ashford and Auburn property owners who live near and oppose the sand pit.
¶3 Subsequent to a hearing on June 13, 2016, the BOA granted the permit, subject to multiple conditions[3] and over the objections of STOMP, and the sand pit has been operating since that time. STOMP sought certiorari review in the circuit court. The circuit court remanded the case for further deliberations as it found that the BOA "did not undertake any deliberation nor make any findings as to what the facts were and whether [it] satisfied the legal standard in the ordinance." On remand, the BOA held a hearing on August 14, 2017, discussing at length the reasons they approved the permit. The circuit court then issued its decision, denying the request for certiorari review and dismissing the action with prejudice. STOMP appeals.
DISCUSSION
¶4 On certiorari review, our scope of review is: "(1) [w]hether the Board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Ruthenberg v. Annuity & Pension Bd., 89 Wis.2d 463, 472, 278 N.W.2d 835 (1979). We review the decision of the BOA, not the decision of the circuit court, and our review is identical to that of the circuit court. Board of Regents v. Dane Cty. Bd. of Adjustment, 2000 WI.App. 211, ¶10, 238 Wis.2d 810, 618 N.W.2d 537. Importantly, Wisconsin courts have repeatedly stated that there is a presumption of correctness and validity to a municipality's decision on certiorari review. Ottman v. Town of Primrose, 2011 WI 18, ¶48, 332 Wis.2d 3, 796 N.W.2d 411. In this case, STOMP bears the burden to overcome the presumption that the BOA's determination is correct. See id., ¶50. "The evidentiary test on certiorari review is the substantial evidence test, under which we determine whether reasonable minds could arrive at the same conclusion the committee reached." State ex rel. Ortega v. McCaughtry, 221 Wis.2d 376, 386, 585 N.W.2d 640 (Ct. App. 1998). We will "sustain a municipality's findings of fact if any reasonable view of the evidence supports them."4 Ottman, 332 Wis.2d 3, ¶53.
¶5 Zoning ordinances generally provide landowners with permitted uses for property, but these ordinances may also provide for conditional uses, which are uses not permitted of right by zoning regulations, but may be authorized by a zoning authority. See Town of Rhine v. Bizzell, 2008 WI 76, ¶20, 311 Wis.2d 1, 751 N.W.2d 780. "Conditional uses are for those particular uses that a community recognizes as desirable or necessary but which the community will sanction only in a controlled manner." Id. The decision to grant a conditional use permit is discretionary, and we hesitate to interfere with such local decisions. Roberts v. Manitowoc Cty. Bd. of Adjustment, 2006 WI.App. 169, ¶10, 295 Wis.2d 522, 721 N.W.2d 499. Wisconsin Stat. § 60.61(4e)(b)1.-2. (2017-18), 5 addressing conditional use permits, provides: 1. If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the town ordinance or those imposed by the town zoning board, the town shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.
2. The requirements and conditions described under subd. 1. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit's duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the town relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The town's decision to approve or deny the permit must be supported by substantial evidence.
Section 60.61(4e)(a)2. provides that "[s]ubstantial evidence" means "facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion."
¶6 In this case, the relevant "conditions specified in the town ordinance or those imposed by the town zoning board" can be found in Town of Ashford, Wis., Zoning Ordinance § 9(6)(c)1.-6. (Aug. 24, 2015), [6] which sets forth six criteria for issuing a permit and requires that the BOA "make findings of fact consistent with" these provisions. The parties both agree that STOMP only challenges the sufficiency of the evidence to support the first and second criteria:7
1. That the establishment, maintenance or operation of the special exception use or structure will not be detrimental or injurious to the use and enjoyment of adjacent properties or properties in the immediate vicinity;
2. That the special exception is compatible with the adjacent existing uses and structures or uses and structures likely to develop which are permitted in the district.
¶7 In applying the applicable law to the facts of this case under certiorari review, we conclude that the evidence in the record overwhelmingly indicates that the BOA kept within its jurisdiction; acted according to the law; did not act arbitrarily, oppressively, or unreasonably; and properly considered and addressed on the record all the requirements and conditions specified in the town code provisions such that the BOA's decision was reasonable under the circumstances.
¶8 Members of STOMP argued at the June 13, 2016 hearing that they believed their properties would be harmed by the sand pit as it would be detrimental to the use and enjoyment of their homes, citing dust and blowing sand, noise, increased traffic, and decreased property values. The evidence...
To continue reading
Request your trial