“Just as Petitioners argue, the court in Osterhues recognized that due process requires a board to allow a party appealing a decision on a permit application to present evidence,” Judge Biskupic wrote. “Thus, the Board would be required under Wisconsin law to conduct a de novo review and allow the Petitioners to present their evidence. Respondents represent that Petitioners will be granted that opportunity before the Board.”

The judge stated that after the Board of Adjustment hears this case and rules, both parties could still return to the Circuit Court for a judgement. The decision and judgement from the Board of Adjustment would provide even more facts that the Circuit Court could then use in a decision, Biskupic said.

“If Petitioners succeed on appeal to the Board of Adjustment, there would be no need for certiorari review. If Petitioners are denied relief, they can seek certiorari review at that time. In addition, if certiorari review is necessary in the future, the proceedings before the Board of Adjustment should clarify necessary claims and parties,” he wrote.

The two parties will now work on a date and time for this hearing before the Waupaca County Board of Adjustment. The permit to Faulks Bros. for the sand mine on the Iola Car Show grounds in the Township of Scandinavia was denied by the Waupaca County Planning and Zoning Committee on a 3-2 vote on August 22nd, but after two closed door meetings with the five board members a reconsideration vote was passed in October. With no new evidence to consider, the Planning and Zoning Committee then voted 4-1 in favor of the permit in January, leading to this current appeal.

We’ll post more details on the next step once we have a date and time for the hearing. That BOA hearing will be open to the public and public comments will most likely be allowed. Stay tuned.