O'Connor v. Buffalo County Board of Adjustment
O'Connor v. Buffalo County Board of Adjustment
Opinion of the Court
¶ 1. Mike O'Connor appeals an order affirming the Buffalo County Board of Adjustment's decision to grant R&J Rolling Acres, LLIj (R&J) a
BACKGROUND
¶ 2. On January 13, 2012, R&J applied to Buffalo County for a CUE R&J sought permission to establish a "[f]rac sand mining operation" on property that was zoned agricultural.
¶ 3. The Buffalo County Board of Adjustment held a public hearing on R&J's CUP application on February 2, 2012. During the hearing, the Board received public comments, visited the site, and ultimately
¶ 4. The Board issued a written decision denying R&J's application on March 29, 2012. The decision addressed each of the seven factors the Buffalo County Zoning Code requires the Board to consider when deciding whether to grant a CUE The only reason the Board identified for denying the application was its concern that the large number of trucks leaving the mine site each day would decrease traffic safety on Highway 88. The Board observed, "At 126 loads out of product and 126 unloaded trucks returning, 252 total trucks would be on the road in a given day. This equates to one truck passing a single designated point each 3.33 minutes through out [sic] the day (14 hour hauling period)." The Board expressed concern that, "[d]ue to the extreme weight of the semi trucks and trailers, the reaction time to slow down, not to mention stopping at [the] driveways/intersections [on Highway 88], could be compromised." The Board also highlighted anecdotal evidence that vehicles sometimes cross the centerline of Highway 88, "due in part to the current road layout and the severity of the corners."
¶ 5. R&J did not seek circuit court review of the Board's decision. Instead, on March 27, 2012, R&J submitted a second CUP application. The second application was identical to the first, except that it corrected a misspelled word, changed the proposed number of
¶ 6. The Board held a public hearing on R&J's second CUP application on April 19, 2012. During the hearing, the Board once again received public comments and visited the proposed mine site. Members of the public again expressed concerns about increased traffic on Highway 88. At the end of the hearing, the Board voted to table R&J's second application for sixty days while the Wisconsin Department of Transportation (DOT) conducted a Traffic Safety Impact Assessment.
¶ 7. At a subsequent hearing on June 14, 2012, DOT representative Tom Beekman presented the DOT's initial findings. Beekman explained the DOT had analyzed a thirty-mile segment of Highway 88. Aside from a 1.4-mile segment near Laehn Ridge Road and another segment "in the urban area of Gilmanton[,]" the DOT concluded "the other 28 miles [are] at or below the state-wide average crash rate, which says performing as expected from a safety standpoint. This is not an abnormal unsafe road." Beekman also explained that, while the relevant portion of Highway 88 contains twenty curves that cause concern with respect to trucks encroaching on the center line, sixty percent of those curves are located near Laehn Ridge Road. Beekman stated the rest of Highway 88 "operates at a fairly reasonable level from a geometric standpoint." He concluded:
I guess if people are hoping that the [DOT is] going to have an absolute data [sic] that says this road is absolutely safe or this one is absolutely unsafe, it's not going to happen. That's not a statement we make on any road. We talk about probability. We talk about*239 ranges. We continue to feel that within the context of this permit, the number of trucks being identified out of this permit, that we do not see Highway 88 moving into any different statistical range for crashes or safety. ... We do not believe it moves into a different statistical range of safety issues at this point in time.
At the end of the June 14 hearing, the Board voted to table R&J's second CUP application to give the Board a chance to review the DOT's report in greater detail.
¶ 8. At a subsequent hearing on June 27, 2012, Beekman provided additional information about lane encroachments on Highway 88. He explained a computer simulation showed that eighty percent of lane encroachments on the relevant section of Highway 88 occurred in the Laehn Ridge Road area. He also stated, "[T]he maximum encroachments we were looking at were basically, on 80% of them that did pop up were 0 to 2 feet, which is very, very minimal at the low end."
¶ 9. At the end of the June 27 hearing, the Board granted R&J's second CUP application, subject to forty-three conditions. The Board's written decision, which was issued July 5, 2012, was similar to its earlier decision denying R&J's first CUP application. As in the previous decision, the Board acknowledged members of the public had expressed concern that the high volume of trucks associated with the mine would decrease traffic safety on Highway 88. However, the Board explained:
The Wisconsin DOT Northwest Region contracted with AECOM to conduct a "Traffic Safety Impact Assessment" for [Highway 88] during May and June of 2012 in light of the potential increase in truck volume on [Highway 88] from proposed, new non-metallic mine operations in the area. Representatives of the DOT were present at the hearings/meetings to present the*240 initial as well as updated results of their assessment and answer questions. Specifically, AECOM addressed crashes and crash rates as well as geometric and operational features pertaining to [Highway 88]. Overall, the [DOT] acknowledges that [Highway 88] may have some substandard features, but believes the road can handle increased traffic volumes.
The CUP limited the number of truck loads leaving the site to 105 per day and prohibited hauling on weekends and certain holidays.
¶ 10. O'Connor, one of the citizens who opposed R&J's application due to traffic safety concerns, subsequently sought certiorari review of the Board's decision to grant the CUE See Wis. Stat. § 59.694(10) (allowing "[a] person aggrieved by any decision of the board of adjustment" to "commence an action seeking the remedy available by certiorari" within thirty days of the board's decision).
DISCUSSION
¶ 11. On certiorari review, we review the Board's decision, not the circuit court's. Roberts v. Manitowoc Cnty. Bd. of Adjust., 2006 WI App 169, ¶ 10, 295 Wis. 2d 522, 721 N.W.2d 499. Our review is limited to the following four factors: (1) whether the Board kept
¶ 12. O'Connor argues the Board proceeded on an incorrect theory of law by granting the CUP for two reasons: (1) the Buffalo County zoning ordinance does not allow frac sand mining as a conditional use in the agricultural district; and (2) after the Board denied R&J's first CUP application, it was prohibited from considering the merits of R&J's second application. O'Connor also argues the Board "acted arbitrarily, unreasonably, and outside its jurisdiction by granting a CUP with no information . . . about the identity of R&J's partners." We address and reject these arguments in turn.
I. Interpretation of the Buffalo County zoning ordinance
¶ 13. O'Connor first argues the Board proceeded on an incorrect theory of law because the plain language of the Buffalo County zoning ordinance does not allow frac sand mining as a conditional use on land that is zoned agricultural. Interpretation of an ordinance presents a question of law that we review independently. State v. Ozaukee Cnty. Bd. of Adjust., 152 Wis. 2d 552, 559, 449 N.W.2d 47 (Ct. App. 1989). However, on certiorari review, we defer to the Board's interpretation
¶ 14. Section 41(1) of the applicable version of Buffalo County's zoning ordinance lists the following as a "conditional use" on property that is zoned agricultural:
Manufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel and the quarrying of limestone and other rock for aggregate purposes, including the erection of buildings, and the installation of necessary machinery and equipment incidental thereto, but not the storage of cement, asphalt, or road oils or the mixing of concrete or black top or related materials, provided that any county, town, or municipal government or its agent may store or mix such materials when incidental to the improvement of highways or streets. [3 ]
¶ 15. In contrast, the Board argues the phrase "for aggregate purposes" modifies only the term immediately preceding it — that is, "the quarrying of limestone and other rock[.]" The Board therefore argues § 41(1) permits two distinct types of conditional uses: (1) manufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel; and (2) the quarrying of limestone and rock for other aggregate purposes. The Board contends frac sand mines fall within the first type of conditional use permitted by § 41(1).
¶ 16. We conclude both O'Connor and the Board have advanced reasonable interpretations of § 41(1). From the text of the ordinance alone, it is unclear whether the phrase "for aggregate purposes" modifies the entire preceding clause or only the words "the quarrying of limestone and other rock[.]" Because the Board has advanced a reasonable interpretation of the ordinance's text, we must defer to the Board's interpretation. See Ottman, 332 Wis. 2d 3, ¶ 60.
¶ 17. O'Connor argues the Board's interpretation is not reasonable because § 41(1) is "replete with words indicating that it exists to allow for the preparation of
¶ 18. O'Connor also argues the Board's interpretation is unreasonable because a large-scale, industrial frac sand mine is not consistent with the other conditional uses permitted by § 41(1), which include aircraft landing fields, drive-in theaters, kennels, mobile home parks, sawmills, landfills, agricultural supply businesses, timber yards, mini-storage facilities, and "municipal buildings for the purpose of repair or storage of road building or maintenance machinery." Again, we disagree. While O'Connor baldly asserts frac sand mining is inconsistent with these other conditional uses, he largely fails to explain why that is the case. The only inconsistency he specifically identifies is the fact that, pursuant to the CUf^ this particular mine will generate a traffic volume of 105 trucks per weekday, which he asserts is "virtually unimaginable for any of the other permitted or conditional uses in the Agricultural District." O'Connor does not, however, point to any evidence in the record regarding the amount of traffic
¶ 19. Moreover, evidence in the record shows the Board has historically interpreted § 41(1) to allow frac sand mining as a conditional use in the agricultural district. The Board has granted at least two other conditional use permits for frac sand mines on land that is zoned agricultural. In addition, Buffalo County's form for CUP applications specifically states the review fee for a CUP associated with a frac sand mine is $3,500, while the review fee for all other CUPs is $250. We agree with the Board that this evidence strongly suggests the Board's interpretation of § 41(1) is consistent with the intent, history, and purpose of the ordinance. See Ottman, 332 Wis. 2d 3, ¶ 62. O'Connor has failed to show that the Board's interpretation is unreasonable, and we therefore reject his argument that the Board proceeded on an incorrect theory of law.
II. Consideration of R&J's second CUP application
¶ 20. O'Connor next argues the Board proceeded on an incorrect theory of law by considering the merits of R&J's second CUP application. He asserts that, after the Board denied R&J's first application, R&J's "sole remedy . . . was to commence a certiorari action in the circuit court." In support of his argument, O'Connor cites Jefferson County v. Timmel, 261 Wis. 39, 63-64, 51 N.W.2d 518 (1952), which states:
*246 [I]f a zoning ordinance provides for an appeal to a Board of Adjustment. . . from an adverse ruling of an administrative officer ... and court review of the decision or order of the Board of Adjustment is specifically provided for by statute, such remedy is exclusive of all other remedies and must be exhausted before a party can resort to the courts for other relief.
¶ 21. O'Connor is correct that, if R&J wished to challenge the Board's denial of its first CUP application, it would have been required to seek certiorari review as prescribed in Wis. Stat. § 59.694(10). However, nothing in § 59.694(10) prevented R&J from instead filing a second CUP application. O'Connor does not cite any statute, ordinance, or case that prevents a board of review from considering a second CUP application after it has denied a previous application by the same party. A municipality may enact a rule prohibiting a party whose application to the zoning board has been denied from filing a new application absent a substantial change in circumstances, see Tateoka v. City of Waukesha Bd. of Zoning Appeals, 220 Wis. 2d 656, 661, 672, 583 N.W.2d 871 (Ct. App. 1998), but Buffalo County has not done so. Given the lack of authority supporting O'Connor's position, we agree with the Board that an individual is free to submit a second CUP application after the first has been denied, as long as he or she is willing to pay a second application fee.
¶ 22. O'Connor argues this conclusion produces an absurd result because it allows a CUP applicant to "continue to get bite after bite at the apple — de novo— until receiving a favorable decision[,]" while members of the public opposing the CUP must then challenge it via certiorari, which is subject to a heightened standard of
¶ 23. As an alternative basis for his argument that the Board should not have considered the merits of R&J's second CUP application, O'Connor relies on the doctrine of claim preclusion. The application of claim preclusion to a set of facts presents a question of law that we review independently. See Lindas v. Cady, 183 Wis. 2d 547, 552, 515 N.W.2d 458 (1994). "Claim preclusion provides that a 'final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences.' " Barber v. Weber, 2006 WI App 88, ¶ 9, 292 Wis. 2d 426, 715 N.W.2d 683 (quoting Kruckenberg v. Harvey, 2005 WI 43, ¶ 19, 279 Wis. 2d 520, 694 N.W.2d 879). "The doctrine has three elements: (1) identity between the parties or their privies in the prior and present suits, (2) prior litigation that resulted in a final judgment on the merits by a court with jurisdiction, and (3) identity of the causes of action in the two suits." Id.
¶ 25. O'Connor acknowledges no Wisconsin court has addressed whether a board of adjustment is acting in a judicial capacity when it considers a CUP application. However, he notes the supreme court has held that a board of adjustment acts "in a quasi-judicial capacity" when considering an application for a variance. State v. Kenosha Cnty. Bd. of Adjust., 218 Wis. 2d 396, 415, 577 N.W.2d 813 (1998), abrogated on other grounds by State ex rel. Ziervogel v. Washington County Bd. of Adjust., 2004 WI 23, ¶¶ 3-8, 269 Wis. 2d 549, 676 N.W.2d 401; see also State v. Outagamie Cnty. Bd. of Adjust., 2001 WI 78, ¶ 41, 244 Wis. 2d 613, 628 N.W.2d 376 (boards of adjustment have "broad quasi-judicial authority to grant variances for minor deviations from zoning restrictions"). O'Connor argues there is no valid reason the decision to grant a variance should be considered a judicial act but the decision to grant a CUP should not.
¶ 27. The existence of local rules prohibiting successive applications supports our conclusion that claim preclusion did not bar the Board from considering R&J's second CUP application. As noted above, some municipalities have enacted rules prohibiting a party whose application to a zoning board has been denied from filing a new application absent a substantial change in circumstances. See Tateoka, 220 Wis. 2d at 661. If claim preclusion operated to bar zoning boards
¶ 28. In addition, even if O'Connor were correct that the doctrine of claim preclusion generally bars agencies from considering successive applications, we agree with the Board and Glacier Sands that O'Connor has not shown claim preclusion applies under the specific facts of this case. O'Connor concedes claim preclusion "would not operate to permanently bar another application for a CUP; it would only continue to do so as long as the pertinent facts remained substantially the same." Here, the evidence regarding traffic safety — which was the Board's sole reason for denying R&J's first application — was significantly different during the Board's consideration of the second application.
¶ 29. In its decision denying R&J's first CUP application, the Board relied on anecdotal evidence to conclude the proposed mine would decrease traffic safety on Highway 88. In contrast, during the April 19, 2012 hearing on R&J's second CUP application, DOT representative Beekman informed the Board the DOT had concluded the relevant portion of Highway 88 was generally "at or below the state-wide average crash rate" and was "performing as expected from a safety standpoint." After presenting the DOT's findings, Beekman stated the DOT did not believe the proposed mine would "move[] [Highway 88] into a different statistical range of safety issues [.]" Beekman presented the Board with "pertinent facts" regarding traffic safety on Highway 88, which were not "substantially the same" as the facts presented during proceedings on R&J's first CUP application. Thus, under O'Connor's own reasoning, claim preclusion did not bar the second application.
¶ 30. Finally, O'Connor argues the Board acted "arbitrarily, unreasonably, and outside its jurisdiction" by granting the CUP when there was "no information given or available about the identity of R&J's partners." O'Connor notes that Wis. Stat. § 801.11(6), which governs service of process on partners and partnerships, states a summons "shall be served individually upon each general partner known to the plaintiff!.]" He then observes that neither of R&J's CUP applications disclosed the identities of R&J's partners. He also notes R&J is not registered with the Wisconsin Department of Financial Institutions. Due to this lack of information about R&J's partners, O'Connor argues Buffalo County may not be able to serve R&J, and, consequently, it "may prove impossible to enforce important conditions of the CUP[.]"
¶ 31. We reject O'Connor's argument for three reasons. First, O'Connor does not cite any legal authority for the proposition that a board of adjustment may not grant a CUP to a partnership without first ascertaining the partners' identities. Second, O'Connor does not cite any evidence that he, or anyone else, raised concerns regarding the lack of information about R&J's partners during the Board's consideration of either CUP application. Third, although O'Connor asserts it "may prove impossible" to enforce the CUP's conditions, the Board argues Buffalo County's zoning ordinance provides several enforcement mechanisms that do not require service of process, including the right to inspect the premises to ensure compliance and the right to investigate complaints. In addition, Glacier Sands notes
By the Court. — Order affirmed.
"Frac sand" is
a high-purity quartz sand with very durable and very round grains. It is a crush-resistant material produced for use by the petroleum industry. It is used in the hydraulic fracturing process (known as "fracking") to produce petroleum fluids, such as oil, natural gas and natural gas liquids from rock units that lack adequate pore space for these fluids to flow to a well.
What is Frac Sand?, http://geology.com/articles/frac-sand/ (last visited Apr. 15, 2014).
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
The parties cite to excerpts from an undated version of Buffalo County's zoning ordinance found in the appendices to O'Connor's and Glacier Sands' appellate briefs. These excerpts differ from the version of the ordinance available on Buffalo County's website, which was apparently updated in April 2013. See http://www.buffalocounty.com/BuffaloCountyOrdinances. htm. For instance, the version of the ordinance available online simply lists "nonmetallic mining" as a conditional use in the agricultural district, and it specifically defines "nonmetallic mining" to include "industrial sand mining." Buffalo Cnty., Wis., Zoning Ordinance §§ 30(f), 51(1) (Apr. 2013), available at http://www.buffalocounty.com/Ordinance/Zoning0rdinanceapproved%204%2016%202013.pdf. Because the version of the ordinance available online was
Case-law data current through December 31, 2025. Source: CourtListener bulk data.