AllEnergy Corporation and AllEnergy Silica, Arcadia, LLC, Petitioners-Appellants-Petitioners,
Trempealeau County Environment & Land Use Committee, Respondent-Respondent.
ARGUMENT: January 11, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d
261, 881 N.W.2d 358 (2016 - Unpublished)
Court Trempealeau County L.C. No. 2013CV245 Elliott M. Levine
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
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.
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.
amici curiae brief was filed on behalf of Wisconsin Counties
Association and Wisconsin Towns Association by Richard
amici curiae brief was filed on behalf of Wisconsin Realtors
Association and Wisconsin Builders Association by Thomas D.
SHIRLEY S. ABRAHAMSON, J.
This is a review of an unpublished decision of the court of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. 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).
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.
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
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?
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.
Before we address each issue in turn, we briefly state the
certiorari standard of review to provide context for the
issues and our decision.
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.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)
In the instant certiorari review, the decision of the
Trempealeau County Environment & Land Use Committee is
accorded a presumption of correctness and
validity. 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.
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
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. We have
undertaken an independent review of the Committee's
record but have benefitted from the court of appeals'
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
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
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.
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
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."
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.
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.
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
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.
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."
Generally, those favoring granting the conditional use permit
cited increased employment. Those opposed cited
environmental, health, and cultural concerns.
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.
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.
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.
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 §
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
To support this challenge, AllEnergy makes three arguments.
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
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.
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.
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.
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.
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).
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.
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.
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.
We disagree with the positions that AllEnergy urges. We
(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.
AllEnergy supports its challenge to the Committee's
jurisdiction by three arguments. As to these three arguments,
(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
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
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.
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 §
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
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.
County Zoning Ordinance § 10.04(5)(b).
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
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 §
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
County Zoning Ordinance § 13.03(3) (a) .
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.
County Zoning Ordinance § 13.03(3) (b) .
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.
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
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.
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.
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.
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.
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
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
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 . . . ."
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.
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. No compelling reason has been given
to justify deviating from Wisconsin precedent and eliminating
site-specific flexibility in local zoning matters.
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