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Allenergy Corp. v. Trempealeau County Environment & Land Use Committee

Supreme Court of Wisconsin

May 31, 2017

AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC, Petitioners-Appellants-Petitioners,
v.
Trempealeau County Environment & Land Use Committee, Respondent-Respondent.

          ORAL ARGUMENT: January 11, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d 261, 881 N.W.2d 358 (2016 - Unpublished)

         Circuit Court Trempealeau County L.C. No. 2013CV245 Elliott M. Levine Judge.

          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]

         ¶1 This is a review of an unpublished decision of the court of appeals affirming an order of the circuit court for Trempealeau County, La Crosse County Circuit Court Judge Elliott M. Levine,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

         ¶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]

         ¶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 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.

         ¶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 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:

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

         ¶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 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 material's use as a proppant in hydraulic fracturing, that is, in "tracking." 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 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 mineral mining, including frac sand mining, requires a conditional use permit in Trempealeau County, AllEnergy filed an application for such a permit and a non-metallic mineral mining reclamation plan with the County on August 2, 2013. The application describes a 550-acre project, which includes a 265-acre mine site, a processing plant, a conveyor system (to move sand and other materials around the facility), storm water retention ponds, and a rail spur connecting the facility to a Canadian Northern rail line.

         ¶15 AllEnergy's application also explains that it had received "favorable determinations" from various state and federal agencies regarding wetland-fill, storm water discharge, and highway-related permits.

         ¶16 Trempealeau County's Department of Land Management initially received the application and referred it to an engineering firm for third-party review. In response to the engineering firm's concerns, AllEnergy made changes to its plan. On August 27, 2013, the Department of Land Management deemed the plan "complete."[13]

         ¶17 Tasked with deciding whether a sand mine should be permitted in the EA-2 zoning district, the Trempealeau County Environment & Land Use Committee held a public hearing on AllEnergy's application on October 9, 2013. During the hearing, AllEnergy's representatives and its experts gave presentations on the project.

         ¶18 After AllEnergy's presentations, the hearing was opened to public testimony. Thirteen people testified against permitting the proposed non-metallic mine and two supported the mine. In addition, letters and e-mails were read into the record. According to the circuit court, "[a]pproximately 368 people went on record as being in favor of granting the conditional use permit, with the vast majority registering their support via form letter with little or no comment, including approximately 51 people who are residents of another state. Approximately 38 people went on record as being opposed to granting the conditional use permit, the majority of whom provided a reason for their position."

         ¶19 Generally, those favoring granting the conditional use permit cited increased employment. Those opposed cited environmental, health, and cultural concerns.

         ¶20 A lengthy discussion ensued between AllEnergy's representatives and the members of the Trempealeau County Environment & Land Use Committee regarding the concerns expressed by the public about the project.

         ¶21 During the public hearing, the Trempealeau County Environment & Land Use Committee reviewed the provisions of the County ordinance concerning conditional use permits, non-metallic mineral mining permits, and non-metallic mine reclamation. See Trempealeau County Zoning Ordinance chs. 10, 13, 20. The substance of these ordinance provisions will be discussed below. For now, it suffices to say that the Committee discussed many of the factors in the ordinance and that AllEnergy was involved in this discussion.

         ¶22 After reviewing the ordinance provisions governing its decision, the Trempealeau County Environment & Land Use Committee discussed what conditions would have to be imposed on AllEnergy's conditional use permit before it would vote to grant the permit. After extensive discussion, the Committee voted 7-1 in favor of imposing numerous conditions on the conditional use permit.

         ¶23 After deciding on the approved conditions, the Trempealeau County Environment & Land Use Committee voted 5-3 to deny AllEnergy's application for a conditional use permit even with those conditions in place. The five members of the Committee who voted to deny the application stated their reasons for doing so on the record. The Committee also prepared a written summary of its decision pursuant to Trempealeau County Zoning Ordinance § 13.03(4).[14]

         II

         ¶24 AllEnergy's first challenge is that the Trempealeau County Environment & Land Use Committee did not keep within its jurisdiction when denying a conditional use permit to AllEnergy when it based its denial on "legislative concerns implicating public health, safety, and welfare."

         ¶25 To support this challenge, AllEnergy makes three arguments.

         ¶26 AllEnergy argues that the Trempealeau County Board of Supervisors decided, as a legislative matter in enacting the ordinance, that the public health, safety, and welfare may be served by allowing non-metallic mineral mining in an Exclusive Agriculture 2 (EA-2) zoning district. AllEnergy reasons that the Trempealeau County Environment & Land Use Committee did not keep within its jurisdiction in denying AllEnergy a conditional use permit because the designation of a use in a zoning code as a conditional use by the Board of Supervisors conclusively establishes that the use is in the public interest.

         ¶27 AllEnergy also argues that because the Trempealeau County Board of Supervisors included non-metallic mineral mining as a conditional use within an EA-2 zoning district, such a use is presumptively valid and the proper inquiry for the Trempealeau County Environment & Land Use Committee is whether the conditional use at the particular location carries impacts greater than the adverse impacts ordinarily associated with that use. AllEnergy asserts further that it is entitled to a conditional use permit as of right because no evidence in the record demonstrates that the proposed non-metallic mineral mining site at the particular location carries impacts greater than the adverse impacts ordinarily associated with that use.[15]

         ¶28 AllEnergy further bolsters its position that the Trempealeau County Environment & Land Use Committee did not keep within its jurisdiction by arguing that the guideline of "public health, safety or general welfare" is too general to supply the necessary guidance for action by the Committee. In making this argument AllEnergy does not refer to the constitution in its briefs, but its argument is a constitutional one attacking the ordinance as an invalid delegation of power to the Committee.

         ¶29 At oral argument, Justice Ziegler asked whether AllEnergy was challenging the constitutionality of the ordinance. Counsel for AllEnergy replied that the court stopped him from making such an argument.

         ¶30 The dialogue at oral argument proceeded as follows:

Justice Ziegler: I'm curious, it doesn't seem that you have specifically made constitutional arguments that this is an unconstitutional delegation of authority or that this ordinance is unconstitutional either facially or as applied, or any other constitutional claims. I'm curious why not.
AllEnergy's counsel: Because this court told me I couldn't make them. That was one of the issues that we raised in our petition for review and the court granted review on the three issues that are stated in its order granting the petition. We did raise a constitutional issue, but it is not before this court.

         ¶31 Justice Ziegler and counsel, however, spoke past each other. AllEnergy's response to Justice Ziegler should have been that it did not raise an unconstitutional delegation of authority claim or make any facial or as-applied constitutional claim in its petition for review. See ¶3 n.3, supra (describing AllEnergy's statement of issues in its petition for review).

         ¶32 AllEnergy's petition for review did raise a constitutional issue that the court did not address in granting review. AllEnergy's petition for review raised a violation of due process and equal protection relating to judicial notice of certain documents. See ¶3 n.3, supra. This was not the constitutional argument to which Justice Ziegler was referring.

         ¶33 Undeniably, AllEnergy's brief attacks the constitutionality of the Trempealeau County ordinance, relying throughout its brief (in pages too numerous to cite in its Table of Authorities) on State ex rel. Humble Oil & Refining Co. v. Wanner, 25 Wis.2d 1, 130 N.W.2d 304 (1964), a case successfully challenging the constitutionality of an ordinance on the grounds of invalid standards in the ordinance.

         ¶34 Trempealeau County's brief correctly objects to AllEnergy's diverging into a constitutional argument in its discussion of whether the Trempealeau County Environment & Land Use Committee exceeded its jurisdiction.

         ¶35 We disagree with the positions that AllEnergy urges. We conclude:

(A) By adhering to the Trempealeau County ordinance, the Trempealeau County Environment & Land Use Committee kept within its jurisdiction in denying AllEnergy's application for a conditional use permit in the instant case.

         ¶36 AllEnergy supports its challenge to the Committee's jurisdiction by three arguments. As to these three arguments, we conclude:

(B) Designation of non-metallic mineral mining as a conditional use in the zoning code does not conclusively establish that the use is in the public interest.
(C) The proper inquiry is not whether the proposed conditional use carries impacts greater than the adverse impacts ordinarily associated with that use, and
(D) The guidelines in the Trempealeau County ordinance, including the requirement that the Committee consider "public health, safety or general welfare, " are constitutional.

         A

         ¶37 To determine whether the Trempealeau County Environment & Land Use Committee kept within its jurisdiction, we compare the terms of the ordinance to the Committee's action. The "kept within its jurisdiction" inquiry on certiorari review considers whether the applicable ordinance grants the Trempealeau County Environment & Land Use Committee the authority to take the action it took. The Trempealeau County Environment & Land Use Committee, as an agency created by the County's legislative body, has those powers that are expressly conferred or that are necessarily implied by the ordinances under which it operates.[16]

         ¶38 The Trempealeau County Zoning Ordinance enacted by the Trempealeau County Board of Supervisors lists various criteria the Trempealeau County Environment & Land Use Committee is to consider in deciding whether to grant or deny an application for a conditional use permit.

         ¶39 The ordinance 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 directs the Committee to approve a conditional use permit only if it determines 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 Zoning Ordinance § 10.04(5)(a).

         ¶40 The Trempealeau County Zoning Ordinance provides 16 other factors to guide the Trempealeau County Environment & Land Use Committee's inquiry in its decision-making function regarding a conditional use permit, including:

1. Whether the proposed project will adversely affect property in the area.
2. Whether the proposed use is similar to other uses in the area.
3. Whether the proposed project is consistent with adopted Trempealeau County plans or any officially adopted town plan.
7. Whether the proposed use creates noise, odor, or dust.
11. Provision for proper surface water drainage.
13. Whether the proposed project creates excessive exterior lighting glare or spillover onto neighboring properties.
14. Whether the proposed project leads to a change in the natural character of the area through the removal of natural vegetation or altering of the topography.
15. Whether the proposed project would adversely affect the natural beauty of the area.
16. Whether the proposed project would adversely affect any historic or archeological sites.

         Trempealeau County Zoning Ordinance § 10.04(5)(b).

         ¶41 Moreover, the Trempealeau County Environment & Land Use Committee is not limited to considering the factors specified in the ordinance. It may consider "additional factors as are deemed by it to be relevant to its decision making process . . . . " Trempealeau County Zoning Ordinance § 10.04(5) (b) . The Committee did not rely on this latter provision.

         ¶42 In addition to the criteria governing the granting of conditional use permits stated above, additional considerations for authorizing non-metallic mineral mining are set forth in chapter 13 of the Trempealeau County Zoning Ordinance. The Trempealeau County Environment & Land Use Committee is required to analyze proposals for non-metallic mineral 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 Zoning Ordinance § 13.01.

         ¶43 The zoning ordinance governing non-metallic mineral mining sets forth another eight factors the Trempealeau County Environment & Land Use Committee shall consider, "among other factors, " when considering an application for a non-metallic mineral mine permit:

(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 reclamation of the site after the operation has been concluded; and (8) the public interest from the standpoints of smoke, dust, noxious or toxic gases and odors, noise, vibration, blasting and the operation of heavy machinery and equipment.

         Trempealeau County Zoning Ordinance § 13.03(3) (a) .

         ¶44 The ordinance also requires the Committee to determine whether the proposed non-metallic mining operation is an appropriate land use at the site in question, including the ability of the operator to avoid harm to the legitimate interests of properties in the vicinity of the proposed operation, as follows:

(b) In order to grant a conditional use permit for non-metallic mineral mining, the County shall find that the proposed operation is an appropriate land use at the site in question, based upon consideration of such factors as: existence of non-metallic mineral deposits; proximity of site to transportation facilities and to markets; and the ability of the operator to avoid harm to the public health, safety and welfare and to the legitimate interests of properties in the vicinity of the proposed operation.

         Trempealeau County Zoning Ordinance § 13.03(3) (b) .

         ¶45 The ordinance acknowledges, however, despite the extensive criteria outlined above, that it is "impossible to prescribe the criteria upon which such a permit may be granted in each and every case." Trempealeau County Zoning Ordinance § 13.01.

         ¶46 In determining whether to grant AllEnergy a conditional use permit, the Trempealeau County Environment & Land Use Committee considered and applied the criteria set forth in the ordinance.

         ¶47 Each member of the Trempealeau County Environment & Land Use Committee who voted against granting AllEnergy's application stated his or her reasons as follows:

Committee member Void: The reason I thought it was an attempt to [negate] the moratorium was that-I wasn't here for the moratorium but I read it. I thought that the booklet was quite incomplete, there was too many unanswered questions in the application process and I felt there was more questions than there were answers.
Committee member Zeglin: I too agree that the plan seemed to be rushed; it was revised after the third party review. Things should have completed before that and it leads one to wonder how many times it may be revised again. The lack of a reclamation plan provided in the initial plan. That should have been done initially. I have numerous environmental concerns about the significant wetlands in the area, the river at this point historically was and is constantly changing it is very hard to plan anything on a long range basis. I'm very concerned with the water table in the area-it is very high. I haven't been convinced that it will not be disturbed. Virg you can add the river constantly floods, changes course.
Committee member Brandt: My reasons were wetland location is too close to sensitive water and wildlife resources and the inability of the applicant to mitigate those concerns to my satisfaction. Um, the possibility of possible significant danger to ground water, by processes involved in mining and processing, and the high capacity well. Number 3 is the significant change to the landscape and to the local cultural . . . and social conditions. Um, and the other issues that had been brought up by staff and the public included the reclamation plan.
Committee member Patzner: Well, I represent the Farm Service Agency and I'm for agriculture. Agriculture has a history of bringing stability and jobs to our local economy, where sand mines have a history of boom or bust on the local economy, therefore destroying good productive agricultural land is not a wise decision. We don't want to destroy our outdoor recreation potential, like hunting, biking and other activities that attract visitors, retirees and people that love scenic beauty who are close to work and live here. There are health concerns with mining so we need to protect our residents.
Committee member Bawek: Based on information given as referenced and my own findings, along with public concerns given at this meeting, this siting does not seem to be in the best interest of our citizens nor in the best use of our natural resources of Trempealeau County. Soil around and in the site bring into question the potential for water problems. Trout Run Creek and the close proximity to the Trempealeau River deem this site as poor. The potential loss of some unique resources for both ourselves and future generations comes into question. That's it.

         ¶48 It is evident that the Trempealeau County Environment & Land Use Committee exercised the powers conferred by the ordinance. It considered factors set forth in the ordinance for granting a conditional use permit. These factors included the impact of AllEnergy's mine on the general health, safety, and welfare of the public; the wise use of the county's material resources; the aesthetic implications of the siting of the mine; and the adverse effects of the mine on the environment (including water quality, ground water, and wetlands), scenic beauty, wildlife, and recreational opportunities. After considering these factors, the Committee determined that AllEnergy's application for a conditional use permit should be denied.

         ¶49 Because the Trempealeau County Environment & Land Use Committee considered the factors the Trempealeau County Board of Supervisors directed the Committee to consider, we conclude that the Committee kept within its jurisdiction.

         B

         ¶50 Our case law has not accepted what AllEnergy advocates as a new doctrine in Wisconsin, namely that a legislative listing of a conditional use equates to a legislative determination that the use is in the public interest. AllEnergy urges the court to apply this doctrine and hold that the Trempealeau County Environment & Land Use Committee did not keep within its jurisdiction when it denied a conditional use permit for non-metallic mineral mining, a conditional use listed in the ordinance.

         ¶51 In Edward Kraemer & Sons, Inc. v. Sauk County Board of Adjustment, 183 Wis.2d 1, 7, 16-17, 515 N.W.2d 256');">515 N.W.2d 256 (1994), the court declared that the court of appeals erred in believing "that the mineral extraction permit had to be granted and if conditions were necessary to ensure compliance with the ordinance, the Board was obligated to fashion them."

         ¶52 Indeed, the Kraemer court concluded that conditional uses may be authorized pursuant to the ordinance, but they are not uses as of right. They are allowed only if approved by the appropriate local governmental authority.[17]

         ¶53 In Delta Biological Resources, Inc. v. Board of Zoning Appeals of the City of Milwaukee, 160 Wis.2d 905, 912, 467 N.W.2d 164');">467 N.W.2d 164 (Wis. App. 1991), the court of appeals emphasized: "[T]he presumption that the conditional use serves the public interest[ ] does not exist in Wisconsin. . . . The zoning ordinance allows certain uses, provided certain conditions are met. These conditions are not presumed to be met either by judicial fiat or by the terms of the ordinance . . . ."[18]

         ¶54 In Wisconsin, and in many states, a conditional use is one that has been legislatively determined to be compatible in a particular area, not a use that is always compatible at a specific site within that area. In these states, the decision whether to grant a conditional use permit is discretionary. The relevant entity determines whether a particular site will accommodate a proposed particular use. In other states, decision makers have less discretion on requests for a conditional use permit.[19]

         ¶55 Thus, our precedent dictates that no presumption exists that a conditional use is ipso facto consistent with the public interest or that a conditional use is a use as of right at a particular site within an area zoned to permit that conditional use.[20] No compelling reason has been given to justify deviating from Wisconsin precedent and eliminating site-specific flexibility in local zoning matters.

         C

         ¶56 No Wisconsin case has concluded that the proper inquiry for a local government entity in considering an application for a conditional use permit is whether the conditional use carries adverse impacts greater than the adverse impacts ordinarily associated with that use. This approach does not comport with ...


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