O'Connor v. Buffalo County Board of Adjustment

2014 WI App 60, 847 N.W.2d 881, 354 Wis. 2d 231
CourtCourt of Appeals of Wisconsin
DecidedApril 22, 2014
DocketNo. 2013AP2097
StatusPublished
Cited by3 cases

This text of 2014 WI App 60 (O'Connor v. Buffalo County Board of Adjustment) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Connor v. Buffalo County Board of Adjustment, 2014 WI App 60, 847 N.W.2d 881, 354 Wis. 2d 231 (Wis. Ct. App. 2014).

Opinion

STARK, J.

¶ 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 [236]*236conditional use permit (CUP) to operate a "frac sand" mine. O'Connor argues the Board proceeded on an incorrect theory of law and acted "arbitrarily, unreasonably, and outside its jurisdiction[.]" We reject O'Connor's arguments and affirm.

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.1 The application identified R&J as the "owner" of the property and Glacier Sands, LLC, as the "developer." Attached to the application were a property description, an aerial view of the property, a plat map, a satellite map identifying the proposed mine site, and a wetlands map. The application also included a map showing the proposed route trucks would use to travel to and from the property. Specifically, R&J asserted the "haul route" would be "south on [State Highway] 88 to [State Highway] 35." R&J estimated eighty trucks would leave the property via this route every weekday.

¶ 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 [237]*237voted to table R&J's application until the Board's next meeting on March 8, 2012. At the March 8 meeting, the Board again received public comments on R&J's application and visited the site. Many of the public comments related to traffic safety concerns regarding the use of Highway 88 as a haul route. During the March 8 meeting, R&J clarified it expected 126 trucks to leave the site each day, instead of eighty. At the end of the meeting, the Board voted 2-1 to deny R&J's application.

¶ 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 [238]*238trucks leaving the site from eighty per day to 126, and proposed to have trucks hauling six days per week instead of five.

¶ 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]*239ranges. 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]*240initial 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.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 WI App 60, 847 N.W.2d 881, 354 Wis. 2d 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-buffalo-county-board-of-adjustment-wisctapp-2014.