DENIED!!! DENIED!!! DENIED!!!

On Tuesday, August 22nd, for the third time the Iola Car Show sand mine permit was denied, this time by three brave souls on the Waupaca County Planning and Zoning Committee.

By a 3-2 vote, the permit was denied. This follows a 3-0 vote from the Township of Scandinavia Planning and Zoning Commission and a 3-0 vote from the Township of Scandinavia Board.

Joe McClone, Wayne Wilfuer and Cindy Hardy voted against the permit, while Chairman Jim Nygaard (who represents the Township of Scandinavia) and DuWayne Federwitz voted to approve the permit. 

The Iola Car Show and Faulks Bros. now have 30 days to file an appeal or the decision will be final. They can choose to appeal to the Waupaca County Board of Adjustment or to file an appeal in civil court.

The 1 hour and 15-minute meeting had more ebbs and flows than a roller coaster ride. Zoning Administrator Jason Snyder first read the staffers recommendation provided by him and Director Ryan Brown to the board that recommended approval of the permit. They laid out 28 conditional uses that would bring the permit more in line with the Township of Scandinavia’s Comprehensive Plan and apparently Faulks Bros. had already agreed to the new restrictions.

Nygaard was all in favor of these conditional uses and he even had the audacity to say, “I think that everything that can be addressed is addressed.” Since the public wasn’t allowed to speak at this meeting there was no chance to correct him and let him know that multiple water well depths still had not been determined or the issue of falling property values hadn’t been addressed yet, or that an end date for the mine had yet to be determined. No, not everything was addressed with these conditional uses.

Still, after the staffers’ recommendation, Nygaard got Federwitz to make a motion for a vote. Nobody else seconded the motion, so Nygaard seconded the motion. Then McClone spoke up about the mine, saying he wouldn’t want the mine and the driveway to the mine 100 feet from his house. He asked Hardy if she would like a sand mine there and she said no. He then asked Wilfuer if he would like that at his house and he also said no.

Nygaard tried to explain to the board that his interpretation of Act 67 meant that they had to vote yes to this measure and County Attorney Diane Muelemans chimed in as well. She even hinted that it was their legal duty to approve the permit.

“The statute has changed to say that the Zoning Board shall approve an application if the conditions currently or will in the future mitigate any concerns,” she said. “By not approving the CUP with the 28 conditions, this body is not complying with the statute. It is up to this body to be compliant with this statute.”

Their interpretation of Act 67 seems odd considering that Marquette County and Green Lake County both voted no on sand mine permits in the last year with Act 67 in place. Plus, to say “the conditions currently or will in the future mitigate any concerns” to the public won’t hold up. Although the public couldn’t speak up at this meeting, there are still a myriad of concerns with water, noise, property values, traffic and other issues that Nygaard and the staffers just rosily glossed over.

Nygaard then called for the vote and he and Federwitz both voted yes. Then McClone voted no. Hardy voted no. And finally, Wilfuer voted no. The room erupted with applause at that point and the meeting was adjourned.

But it might not be the final word on this sand mine permit. At least not according to Jon Faulks, who talked with Holly Newmann of the Waupaca County Post after the meeting and said, “Their decision not to comply with law is worrisome for businesses as well as individuals in Waupaca County. The next steps will be important for the community to pay attention to.”

We will also be paying attention over the next 30 days. But McClone may have summed it up best when he said, “I think it is un-American if we don’t follow what our townships and villages requested.” 

He is right and if Act 67 really is this all-encompassing law, then it makes every local Comprehensive Plan meaningless and takes any authority of governing away from the municipalities. It’s an odd interpretation of that law when two other counties have done exactly what Waupaca County has done and no court has overturned those decisions. 

We will find out if there is a next move in this year-long saga or if this is the end of the sand mine.

Stay Tuned.

******* ******* *******

The turning point of the August 22nd Waupaca County Planning and Zoning Committee meeting on the Iola Car Show sand mine permit occurred when one board member asked a simple question.

It happened 50 minutes into the meeting after Zoning Administrator Jason Snyder had presented his 28 conditional uses that would allow the permit to be approved by the board. It also came after Chairman Jim Nygaard already indicated that he would be in favor of approving the permit because of Act 67 and right after board member DuWayne Federwitz said he was in favor of approving the permit. The permit was being teed up for approval when board member Joe McClone spoke up and said:

“My question to my colleagues here, Mr. Federwitz, would you like a sand mine by your house, under conditional use, with the driveway being 100 feet or whatever from your door?”

Federwitz then responded, “I’d have no problem with it.”

McClone then said to board member Cindy Hardy, “Cindy, would you be ok with that same situation I presented to Mr. Federwitz, having a conditional use permit next to your farm?”

Hardy responded, “I would not want it.”

McClone then asked board member Wayne Wilfuer, “I know where you live, and it’s wonderful, but to make a long story short, would you want that next to you?”

Wilfuer responded “no.”

McClone then concluded by saying, “Ok, then my comment here is I think it’s un-American if we don’t follow what our townships and villages requested. Either way, either way, I do believe it’s not going to get resolved here, and uh, that’s what court systems are for.”

The room erupted in applause, but Nygaard came back with a long explanation on why he thought legally the board HAD to vote for approval based on Act 67. He said that the 28 conditions that Snyder and Ryan Brown had recommended covered all the concerns of the citizens, which just wasn’t correct. There are still many concerns that were not addressed by Snyder and Director Ryan Brown, including depth of homeowner wells, reduced property values and the permit still not being in compliance with county ordinances. But the public was not allowed to speak when Nygaard said that. One homeowner raised his hand to rebut his statement, but was told he was out of order and wasn’t recognized.

Nygaard went on to say that “we didn’t write the laws, we just have to follow through on enforcing and applying them. Are we ready for a vote? I’m gonna call for the vote if discussions and questions are done. The vote is to approve the conditional use permit with all 29 conditions.”

He quickly took the roll call:

Federwitz: Yes

Hardy: No

Wilfuer: No

McClone: No

Nygaard: Nygaard, yes. Motion fails.

A HUGE applause followed with Nygaard stating that everyone was out of order. But at that point, nobody cared as the permit was defeated 3-2, the third straight DENIED vote of this permit.

Board member McClone put common sense to the test and common sense passed. Good for him and the other board members for speaking up and voting the way they did when the entire meeting was teed up for this permit to be pushed through. There may be an appeal by Faulks Bros., but the statement that “it’s un-American if we don’t follow what our townships and villages requested” sure made sense to a community that was asking for this. Good for them and good for the Township of Scandinavia.

******* ******** ********

There were actually two turning points in the August 22nd Waupaca County Planning and Zoning Committee meeting and both played a factor in the board’s decision to deny the permit to Faulks Bros.

The first one is mentioned above.

But the second turning point occurred shortly after McClone’s questions when two board members asked about the time frame for this sand mine. In the list of Conditional Uses that the Township of Scandinavia sent to the Waupaca County Planning and Zoning Committee, one quoted LU18 of the Township of Scandinavia Comprehensive Plan: “Conditional use permits for extraction operations should include a time limit for completion of the project.” Gary Marx wrote this: Town recommends a time limit to be established, and at a minimum, a review in 5 years.

Even Waupaca County Ordinance Chapter 38, 26.4 says: “Operation Plans. The application submitted for a Conditional Use Nonmetallic Mining Permit shall be accompanied by the following information and/or plans reasonably reflecting the best information available at the time of the application:

26.4.6 The dates of the proposed commencement and cessation of proposed mine construction and mine operation.”

Yet the Board was close to approving a permit that was not in compliance with County Ordinance Chapter 38, 26.4.6. And in fact, Director Ryan Brown was trying to explain why there would be no time frame for this sand mine and that it could go beyond 15 years, depending on the demand and price of gravel going forward. That has been the reason that Faulks has never put a timeframe on this project because they said it all depends on market conditions and they don’t know what the market will need over the next decade. When the board members heard Brown’s explanation, they did use this evidence as part of their reasoning for voting against the permit.

Here’s the exchange:

DuWayne Federwitz: What is the maximum length of this?

Jason Snyder: In terms of the duration of operation?

Ryan Brown: Yeah, we don’t have a, there’s not an actual…

Federwitz: Because nothing was posted.

Brown: Right, so, the, the thing is, when it comes to non-metallic mining, it’s hard to have a very hard and fast date that they’re going to be done because a lot of it is based on the amount of material that’s in the pit, and how long it takes them to utilize all the material within that pit. And so, it very well could have that whole thing depleted inside ten years, it could be seven years, it could be fifteen years. What we look for in terms of our ordinance, what we try to get a feel for, is this gonna be the type of mine that’s gonna be around for, is this a 40 year, a 50 year mine, is this a generational mine or is this gonna be a, a, shorter term mine. You know, and so, we know when it comes to their marketable materials, it’s a bit of a different scenario that they’re facing than with other commercial enterprises.

Cindy Hardy: So you’re saying this could go on for 40 years, if that was available.

Brown: What they’re saying is that it’d be 10 to 15 years, is what they have said to us. But a lot of that, again, it depends because if they have a lot of contracts in that area, then they may be pulling from that a lot early on and then it very well may be depleted much earlier than that. Or, we could have a scenario where they’re not pulling from that area very much at all in the first 10, 15 years, so they’re not grabbing any material out of it, and therefore that material would then still be there to exist for a little bit longer than that.

Hardy: So we are not looking at a time limit on it at all?

Brown: Well, we didn’t provide a recommendation for it.

Snyder: If the committee feels that’s in the best interest, they can certainly apply that.

Federwitz: So as a committee, we could make a limit of 10 years, to be reviewed, or something?

Snyder: Certainly.

The board added a 29th conditional use to review the sand mine after 10 years, but it didn’t put a timeframe on the mine, which is what County Ordinance Chapter 38, 26.4.6 requires. When asked if this mine could stay open for 40 years, Director Brown did not say no. He said it could be longer than 15 years and in the end three board members didn’t agree with that. In fact, their votes followed the legality of County Ordinance Chapter 38, 24.6.4.