Dairyland Public Interest Law PO Box: 352 Madison, WI! 53701 www.dalryandpublicinterestlaw.com Dairyland Publiinterestlaw Kathleen G. Henry (WI, MO) 608-213-6857 nenry@dairylandpubliinterestaw.com December 17, 2024 Lincoln County Board of Adjustment 801 N. Sales Street, Suite 201 Merrill, WI 54452 Re: Skanawan Property Owners. Association' 's Appeal ofa Conditional Use Permit issued to Milestone Materials, a division of Mathy Construction by the Land Services Committee on. June 8, 2023, allowing Mathy to use lands zoned. RL4J for Sand and Gravel. Extraction as permitted in S 17.2.100 for the expansion ofa gravel pilmon-metallic mine in the Town of Skanawan, W4021 County. Road S, Irma, WI54442 Members of the Board: On behalf oft the Skanawan Property Owners Association, U.A. ("SPOA"),Iam: alleging the approval by the Land Services Committee CLSC')ofMiestone Materials, a division of Mathy Construction Company's ("Matly)application for a conditional use permit is erroneous for the reasons below. The Skanawan Property Owners Association is an unincorporated association of individual owners and residents ofthe Town of Skanawan who have organized in response to the concerning development of unsuitable industrial activities within its boundaries. SPOA represents those concerned with and affected by the harmful effects ofi improper industrial-scale mining on the health, safety, and welfare oft the community, the deleterious effects on the environment and recreation, and the detrimental effects on property values. It is SPOA's mission to hold accountable their political leadership, which has a duty to protect their interests and rights. I. The Lincoln County Land Services Committee Lacked Authority to Issue a Conditional Use Permit Because the Town of Skanawan has Enacted a Non-Metallic The Town of Skanawan enacted a Non-Metallic Mining Ordinance on August 3, 2004, which remains in effect today and is attached as Exhibit 1 to this Appeal. In it, the Town notes that the Town has Village powers which it was granted in April, 1999. The Skanawan Non- Mining Ordinance and No County Approval is Necessary Metallic Mining Ordinance provides that: Every person doing business in the Town of Skanawan who engages in a non-metallic mining operation site in the Town of Skanawan or aj person who engages in reclamation ofar non-metallic mining site shall seek and obtain ai non-metallic mining license from the Town of Skanawan. (Skanawan Non-Metallic Mining Ordinance, 2. Coverage.) Accordingly, Mathy Construction applied for a conditional use permit from the Town of Skanawan on February 27, 2023. On June 8, 2023, the Town issued a recommendation that the County approve the conditional use permit application, but only with the conditions listed by the Town. (Exhibit 2 is the Town's. Recommendations with Conditions.) However, the Town did not need to make ai recommendation to the County as the Town has Village powers and can issue Non-Metallic Mining permits with no approval from the County necessary. The Wisconsin Supreme Court held in Zwiefelhofer V. Town ofCooks Valley, 2012WI7, 338 Wis. 2d 488, 809N.W.2d3 362, that a town with Village powers can issue Non-Metallic Mining Ordinances with no approval needed from the County in which the town is located. 2012 WI7,780. The Court determined that Non-Metallic Mining Ordinances are distinguishable from zoning ordinances and Towns with Village powers can enact and enforce their own Non-Metallic Mining Ordinances, permits and licenses without needing county approval. Therefore, it was error: for the Land Services Committee tol hold a hearing on the CUP application and toi issue a CUP. II. IfLincoln County did have authority to issue a CUP, then the Land Services Committee violated the Lincoln County ordinances because the Land Services Committee's Action of Approving the CUP Failed to Meet the Requirements of Lincoln County Ordinance Section 17.8.12(2)(b) because the LSC Failed to Consider the Appropriate Standards Lincoln County Ordinance $ 17.8.12(2)(b) provides that the Board of Adjustment has the (b) Hear and decide appeals where iti is alleged that there is an error in any decision oft the Land Services Committee related to a conditional use permit request, with such review limited to determining whether the Committee's: action considered the appropriate standards and met the requirements oft this chapter, as opposed to the Board of "duty and responsibility" to: Adjustment conducting a de novo: review. Int this case, there is an error in the decision of the Land Services Committee ini that the LSC did not consider the appropriate standards and did not meet the requirements of Chapter 17. 2 A. The Land Services Committee did not Consider the Appropriate Standards and did not Meet the Requirements of Chapter 17 of the Lincoln County Ordinances Lincoln County Code of Ordinances 17.8.11(d) provides that the Lincoln County Land Services Committee shall: "Review and decide on requests for conditional use permits, . following the procedures in Section 17.8.30." Section 17.8.30 provides that once an application for a conditional use permit is filed, the zoning administrator shall prepare a report evaluating the application based on its being: "harmony with the purposes oft this chapter, the comprehensive plan, State and Federal law, sound planning and zoning principles, and standards within the Zoning Ordinance."] 17.8.30(3). The LSC shall then: "Make a determination on the conditional use application based on the substantial evidence, other requirements and standards of this ordinance. The Committee shall provide the reasons for its action.. " 17.8.30(6). The minutes of the. June 81 meeting oft the LSC do not provide the reasons for the LSC's actions in violation of17.8.30(6) There are no reasons recorded for denying the residents oft the protections outlined ini the Town of Skanawan's conditions attached to the CUP. The standards are stated in $ 17.8.30(7): Conditional Use Permit Standards: The Committee may impose reasonable conditions with the approval ofa conditional use proposal, to the extent authorized by law as described in $59.69(5e)(2b), Wis. Stats. Conditions imposed shall meet all oft the following requirements: (a) Conditions must be practical and measurable. (b). Any condition imposed must bei related to the purpose oft the ordinance, outlined in Section 17.3 regarding the specific land use and be based on (c)_Any condition must be reasonable and to the extent practicable, measurable and may include conditions such as the permits duration, transfer, or renewal. (d) The proposed conditional use will maintain compliance with the zoning standards and the county comprehensive land use plan, including town land use plans developed by individual towns and as incorporated in the county (e)T The conditional use will meet all applicable standards of other divisions oft this chapter, particularly any standard in Division 17.3, which is applicable to the substantial evidence. comprehensive land use plan. particular conditional use being sought. The standards in $ 17.3 relating to Nonmetallic Mines are stated in $ 17.3.08(10): (a) The applicant for a conditional use permit shall meet the standards in Section 17.8.3... The LSC's permit does not meet the standards ofs 17.3 because it does not comply with state statutes as set forth below. It is not protective of public health, safety and welfare and 3 denies conditions requested by the Town which represents the neighbors who will suffer from the mining operations noise, dust, traffic, loss of property values, unsafe and deteriorating roads. III. The Land Services Committee's Recommendation Violates Wis. Stat. Section 59.69 because the Conditional Use Permit does not Promote the Public Health, Safety and Welfare; Does Not Protect Property Values and the Property Tax Base; and Does not Permit the Careful Planning and Efficient Maintenance of Highway Systems Wis. Stat. $ 59.69(1) states that: Iti is the purpose oft this section to promote the public health, safety, convenience and general welfare; to encourage planned and orderly land use development; toj protect property values and the property tax base; to permit the careful planning and efficient The CUP violates this statute for the following reasons. The LSC failed to include the conditions adopted by the Town of Skanawan that were protective of! property values and the property tax base and did permit the careful planning and efficient maintenance ofhighway maintenance ofl highway systems; : systems. The Skanawan Property Owners Association requests the County Board of Adjustment to adopt all oft the conditions listed in the Town of Skanawan's Conditional Use Permit. The minutes from the LSC meeting ofJ June 8, 2023, show no valid reasons for ignoring the will of the people and government oft the Town. The LSC Committee members' votes are not transcribed nor are any comments or concerns any of them had with the Town's conditions. Specifically, for example, the Town imposed Condition No. 2, "No exhaust or engine braking shall be allowed at any time." The purpose oft this condition is to protect human health because when the trucks go: from fourth to third gear and use the engine to brake, the trucks make very loud noises which are disturbing to: nearby residents. In' Town Condition No. 5, the Town sought to have Mathy bei responsible for ensuring that debris is cleared from Highway S adjacent to the property and along the haul route for 1.5 miles. The County should not have interfered with a condition that clearly protects human health and the condition of roads and highways as that is a safety issue. In Town Condition No. 9, the Town sought tol have Mathy provide pictures and diagrams showing the current extent of the extraction operations and the areas that have been reclaimed during the previous year. The County should not have undone this agreement. The County has the authority and duty under statute and regulation to inspect the property and could take pictures and SO inform the citizens, but the County has not done this. The records received from the County show one photo from 2021, and no photos from 2020 or 2022, and the one photo shows brown and does not indicate any meaningful reclamation was done by Mathy. The County is required to inspect the mining operations yearly, but the lack of photos, notes or suggestions, does not provide assurance this is being done. 4 In the application to the County and to the' Town of Skanawan, Mathy stated thel hours would be from 7 am to 5 pm, Monday through Friday. There is no justification for the County to increase the hours tol be from 6 am to 6 pm and include Saturday morning hours of6 am to noon, when Mathy did not even request those hours. Loud noises are. harmful to health every day but on Saturday mornings especially people should have to right to not suffer them. Furthermore, the records show ai form letter giving Mathy a great reference even before being asked and based on nothing in particular (Exhibit 3). Citizens have no way ofk knowing if any reclamation is being done. These are. just some oft the protections the Town sought fori its citizens. The Land Services Committee violated state statute by removing these conditions when issuing a IV. The Reclamation Plan Violates State Statutes and Town and County Ordinances and the. Application Cannot be Granted Until the Reclamation Plan is Revised to The Reclamation Plan in Mathy's 's application states that "Lincoln County will determine the criteria for successful reclamation during annual inspections with input from Milestone or their consultants" (CUP Application. p. 22). However, the documents produced from Lincoln County do not show that Lincoln County is evaluating the reclamation in any meaningful manner and do not support Mathy' 's claims that it will leave the area capable of being restored to support plant and wildlife habitat as required by Wis. Stat. $ 295.11(4). See the 2021 Inspection Notes V. Because the Land Services Committee's Recommendation Violated the Law for the Reasons Above, the Board of Adjustment Should Deny the Recommendation conditional use permit. Conform to thel Law and Ordinances attached as Exhibit 4. Wis. Stat. $ 59.694 (8) provides that: ORDER ON APPEAL. In exercising the powers under this section, the board of adjustment may, in conformity with the provisions oft this section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought tol be made, and to that end shall have all the powers oft the officer from whom the appeal Accordingly, the Board of Adjustment has the authority to impose the conditions requested by the people who live nearest to the mine and that the Town sought to impose. VI. Lincoin County Ordinance $ 17.8.12(2)(b) Violates State Statute by Prohibiting the Board of Adjustment from Conducting Del Novo Review Under All Circumstances: Wis. Stat. $ 59.694(8) does not limit the type of error that a board may review. ist taken. 5 Subsection (8) gives a board "all the powers oft the officer from whom the appeal is taken." Because in this case the Committee has the power to take evidence and decide whether to grant a conditional use permit, the Board must have the: same power, as the statute gives it "all the powers" the Committee has. Furthermore, ift the Board may not conduct a substantive review, ity would be unable to determine whether there is substantive error in the Committee's decision. Therefore, since the County ordinance takes away the statutory right, it is void. A municipality cannot lawfully forbid what the legislature has expressly licensed, authorized or required, or authorize what legislation has forbidden. Volunteers of America Care Facilities V. VII. The Board Will Violate the Open Records Act by Going into Closed Session to Village of Brown. Deer, 97 Wis.2d 619, 294 N.W.2d 44 (Ct. App. 1980) Discuss the Matter The Notice oft the meeting states that the Board will go into closed session to discuss the matter, stating: "Pursuant to Wisconsin Statute Section 19.85(1)(a) Deliberating concerning a case which was the subject ofany judicial or quasi-judicial trial or hearing before that governmental body, re: the Appeal." We object for several reasons. One is that a closed session will violate the spirit of the law, which is stated in Wis. Stat. $ 19.81(1): "In recognition of the fact that ai representative government ofthe American type is dependent upon an informed electorate, it is declared to be the policy oft this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business," and in Section 2: "(2)Toi implement and ensure the public policy herein expressed, all meetings ofall state and local governmental bodies shall bej publicly held inj places reasonably accessible tor members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law." The second reason is that the statute cited does not require the BOA to go into closed session. Section 19.85(1) says a governmental body may. go into closed session, but does not require it. The third reason is that this matter does not fall within the definitions oft the statute cited, $19.85(1), which discusses a governmental body, deliberating concerning a case which was the subject of any. judicial hearing. The subject ofthej judicial hearing was procedural - the BOA refused to let] people speak. The merits ofthel LSC's Order were not the subject oft the judicial proceeding. The merits oft the LSC Order also were not the subject of the hearing before this governmental body in the prior meeting. A closed session will deprive constituents from hearing their representatives' thoughts and opinions in violation of the law. We urge the BOA to not go into closed session to deliberate this matter. 6 VIII. Conclusion For the foregoing reasons, SPOA urges the Board to either impose the conditions on the CUP that the Town sought toi impose, or to reject the recommendation issued by the Land Services Committee. Very truly yours, Kathle Hrepn Hnuy Kathleen Green Henry 7 Exhibit1 1 Skanawan Property Owners Association Town of Skanawan Non-metallic Mining Ordinance Purpose and Severability This is an ordinance establishing licensing regulations to provide for orderly, economic and safe removal and crushing of sand, gravel, rock and soil; and to promote the public health, safety, and general welfare in the Town of Skanawan, Lincoln County, Wisconsin. The Town of Skanawan has been granted village powers at the. April 1999 Annual Town Meeting under Wisconsin Statues Ini interpreting and applying this ordinance, the provisions of this ordinance shall be held to be minimum requirements and shall be liberally construed in the favor to the Town of Skanawan. Inc case any portion of this ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, then the remainder of this ordinance shall not be affected thereby. 61.34( (1). 1. Definitions A. APPLICANT: A person, or legal entity, who has applied for, received, a non-metallic B. NON-METALLIC MINING: The excavation, removal, storage or processing of sand, gravel, rock or soil. Non-metallic mining shall not include the excavation, removal, 1. Excavation for the foundation, cellar, or basement of some pending structure for which a license has been issued, and which is to be erected immediately 2. On-site construction of approved roads, sewer lines, storm sewers, water mains ors surface water drainage, approved by the Skanawan Town Board for agriculture or conservation purposes, sod removal, or other public utilities. 3. Landscaping purposes on a lot used, or to be used, as a building site. 4. Gradinglexcavation of land in conjunction with improvement of a site for lot development, providing activities will be completed within two years. C. STOCKPILING: Storage of processed or raw materials of the sand, gravel, or rock mining license. or storage of rock, sand, dirt, or gravel for the following purposes: following the excavation, removal, or storage. operation. 2. Coverage Every person doing business in the Town of Skanawan who engages in a non-metallic mining operation site in the Town of Skanawan or a person who engages in reclamation of anon-metallic mining site shall seek and obtain a non-metallic mining license from the Town of Skanawan. The fee for such license shall be established by the Town Board of the Town of Skanawan at $300 per license. The license shall be issued from March 10 of one year to February 28 or 29 of the next year. The license shall be issued by the Town Board of the Town of Skanawan prior to the person conducting and maintaining a non- metallic mining operation at a non-metallic mining site in the Town of Skanawan. 3. Appication/License The application and license shall designate the premises to be used the non-metallic mining operation. The license may not be amended by if the the licensed application for the person for premises in the Town of Skanawan for the non-metallic mining site. The person changes license shall contain: a. The name of applicant b. The address of applicant d. The required fee C. The business and residential telephone number of applicant e. The Operation Plan for the Non-Metallic Site. At a mimimum, each Plan operation mining site shall include the following information: Operation 1) An accurate legal description of the property where the non-metallic occur. Include in this description the number of acres in the proposed mining will 2) An account of how the mining operation at the described non-metallic - References from all other municipalities where the applicant has other non-metallic mining operations indicating the applicant's history of compliance with the respective and site layout. will meet the requirements of this ordinance. municipality's regulations. The applicant shall meet with the Town Board in open session to discuss the operation plan, and references to determine whether the applicant has met or application, meet requirements of this ordinance. Ift the Town Board determines that ordinance are or will be met, the Town Board shall grant the license. the requirements of this will the 4. Exemptions following activities: Persons will be exempt. from this license requirement if they conduct in the Town of Skanawan the land following obtained required to disposal which to be used for lining, waste facility or the a. Excavations or grading by a person solely for domestic use at his or her residence b. Grading conducted for farming, preparing a construction site or af flood or natural disaster. under Chapter 293 Wis. Stats. restoring C. Excavations for building construction purposes d. Any metallic mining operation, the reclamation of which is required in a license e. Any activities conducted at a solid or hazardous waste disposal facility site prepare, operate or close a solid waste disposal facility under Chapter 289 hazardous waste disposal facility under Chapter 291 Wis. Stats. but reclamation ordinance may apply to activities related to solid or hazardous a non-metallic waste mining are conducted at a facility such as activities to obtain non-metallic minerals capping, covering or constructing berms, dikes or roads for the solid Wis. Stats. or a hazardous waste facility. 5. Ordinance/License The Town of Skanawan shall issue a license if the following conditions are met: a. Develop a reclamation plan required by and approved by Lincoln County under Section 12.04 Lincoln County Code of Ordinance, Non-metallic Zoning (CR.374-2001). Mining b. Install and maintain a gate at each entrance and exit of the non-metallic mining site Meet the following safety setbacks: No mining, stock piling or land disturbance shall 2) 25 feet of any existing structures intended for human or animal habitation, not accessing town roads. take place within: 1) 25 feet of adjoining property lines. owned by the operator or owner. 3) 25 feet of any road right-of-way of any existing road. d. Comply with environmental regulations and permits issued for this site. e. Reach agreement with the Town Board of Skanawan, and carry out the terms of such agreement, regarding the maintenance and repair of town roads used a agreement will take into account the dust from the additional truck traffic, road as specified in Wisconsin Department of Transportation Chapter 204 Road Improvement Standards, existing usage of the town road, location Existing and Town residents along the haul route and the availability of funding for road The authority of the Town Board to request such an agreement comes improvements. from Wis. Stats. 349.16 which authorizes the town to set weight limits on town roads to State Maintain a paved access of 100 feet to any paved haul route the trucks use g. Comply with operational and hauling hours of 7:00 A.M. to 5:00 P.M., Monday through Friday as determined by the Town Board of Skanawan. Additional hours may be temporarily granted by contacting the Skanawan Town Board operational if h. Pay the annual license fee and any taxes or special assessments collected i..T The licensee is responsible for keeping a current address on file with the town clerk. Such agreement shall pertain to improvements, roads before, during or after project and repairs, as haul route. maintenance of any town completion to be used for a haul route. The design number of protect to the road from damage. enter or exit the non-metallic site. circumstances warrant expanded operating hours. unusual by the Town of Skanawan. 6. Violation and Penalties a. Any person or corporation who violates any of the provisions of this ordinance, and upon conviction thereof, shall be subject to a forteiture of not less than than $5,000, for each violation. Each day of continued violation $250, nor more is a separate offense. b. In addition, in the event of a violation of this ordinance, the town board may take appropriate action to enforce this ordinance, including action to terminate or licensed, application for injunctive relief, action to compel performance, or other modify court action, to prevent, restrain, correct or abate such violation(s). To the extent legally permissible, the court may award costs, disbursements and reasonable attorneys' fees required in enforcing this ordinance. 7. Termination or Modification of License a. Any license granted pursant to this ordinance may be revoked or modified for violation of any provisions of this ordinance, or any conditions attached the a Notice of intent to revoke or modify, and stating the alleged to license. grounds for the same, shall be served by certified mail or by personal service, upon the licensee at the address set forth in the application. Such notice shall contain the effective date of the revocation or modification, the nature of the alleged violation(s) constituting the basis of the action, and a statement that if the licensee desires a hearing, he must, within 45 days, file a written request for the same. The request for a hearing shall be delivered in person, or by certified mail, to the Town of Skanawan Clerk by 6:00 P.M. on the 45th day following service on the licensee. Saturdays, Sundays, and legal holidays shall be excluded in computing any periods under this ordinance. The request shall contain the name and address of the person requesting a hearing. The revocation or modification shall go into effect as stated in the notice, unless a hearing is requested by the licensee. b. Upon receipt of a request for hearing, the town board shall schedule a hearing, upon 20 days notice to the licensee. Notice shall be sent by certified mail. At the hearing, the Town Board shall hear all testimony and evidence offered by the licensee and other witnesses. At the conclusion of the hearing the Town Board shall determine whether the licensee has violated this ordinance, or the conditions of the license, or terms of any other permit or license issued by any other governmental body or agency, and needed to operate the non-metallic mining site. This may include, but is not limited to Chapter 12.04 of the Lincoln County Code, Chapters 281,285,289.t0 293, 295, and 299 Stats., and rules adopted thereto, and as amended, modified, or renumbered from time to time. The hearing may be adjourned from time to time until completed. Ifthe Town Board finds a violation, the board may then do any of the following: 1) Revoke the license 2) Suspend the license for a stated period 3) Attach conditions to the license to bring the site into compliance. The town clerk shall send a written copy by certified mail of the final decision to the licensee within 7 days of the conclusion of the hearing, stating the action taken, and the reasons for such action. 8. Effective Date The effective date of this ordinance is AUGusT 10,1004 Passed by the Town of Skanawan Town Board this date 08-09-04 Kyrle Hilgendorf, Chairman HabPd Jim Dremler, Supervisor William Jones, Supervisor : e, lz sila E Soha Prepared 7/15/04 TOWN OF SKANAWAN LINCOLN COUNTY, WISCONSIN APPLICATION FOR PERMIT FOR NON-METALLICMINING DATE OF APPLICATION: PERMIT TO BE ISSUED TO: ADDRESS: CITY: TELEPHONE: FOR OPERATION AT: TYPE OF OPERATION: STATE: (Business) (Home) An Operation Plan must be submitted to the Town of Skanawan prior to commencing business, and include all information as required in Section 3 - ApplicationLicense of Ordinance 2003-2, Town of Skanawan Non-metallic Mining Odinance. A copy ofs said ordinance is enclosed for your information. Upon receipt of the application and required information, a permit will be issued and operation may begin. Any person or corporation who violates any ofthe provisions of this ordinance will be subject to a forfeiture as described in Section 6- Violation and Penalties. TOWN BOARD TOWNOF SKANAWAN Reccived 68-33 Exhibit2 Skanawan Property Town Recommendation Form Conditional Use Request, Petition for Modification of Subdivision Ord., Plat Owners Association Town of Skanawan Lincoln County Name ofApplicant Mathy Construction Company Request: Expansion ofsand and gravel extraction operation to optimize recovery ofowned sand and gravel reserves at existing Coombs South Gravel Pit. The Town Planning Commission has made a recommendation- on this date to: Approve thel Request: by a vote of For and Against Conditions: Deny the) Request: by a vote of Delay thel Request for 30 days: by a vote. of Comments/Reasons for any oft the above recommendations: Forand Against Forand Against The! Town Board has made a recommendation on this Ne.5,203 2Approye the Request; by a vote of 3 Forand Against Conditions: See Allacked Oocument Deny the Request: by a vote. of Delay the Request for 30 days: by a vote of Comments/Reasons for any of the above recommendations: For and Against Fora and Against (Check herei if:) The Town hereby waives its right to make ai formal recommendation on this Request to the Lincoln County Land Services Committee. Dated this_ SK- day of June 20_23. 74Ao Signorfe Town! Board Supervisor Signature Town! Board Supervisor Signature dacfsoade 4n2i1-4) B Town Board Supervisor Signature TOWN OF SKANAWAN Regarding Conditional Use Permit No. Revision 96-1075-R. Applicant: Mathy Construction. Based on the information supplied by the Applicant and the facts and information discussed at Town meetings, and as the record will show, the Town Board of the Town of Skanawan voted at its meeting of June 5, 2023 as follows: "The Town recommends that the County approve the proposed CUP but only with the Town's proposed conditions being included in the final CUP." Vote: 3 Ayes, 0 No. The final conditions being recommended by the Town of Skanawan to be included in any approved Condition Use Permit for this appliçant are as follows: 1. Applicant is responsible for any violations of traffic or noise or nuisance ordinances or laws and applicant shall take care to not violate any such applicable laws. 2. 3. 3above. 4. No exhaust or engine braking shall be allowed at any time. Applicant shall have. made appropriate signage for the road accessing the subject property and any other active NMMs clearly stating the prohibition in No. Town reserves the right to revoke or suspend the Town's license int the case of violations caused through operations at the subject NMM property or on any roads or highways over which the applicant hauls materials either in or out of the property and over which the Town has jurisdiction. 5. Applicant responsible for ensuring that any debris including sand gravel, excess dust, grubbed materials are cleared on Highway S adjacent to the entrance to the Property and also along the haul route on Highway S up to and through the right and left turns located approximately 1.5 miles to the West of the property entrance. Applicant is responsible for safe and reasonable travel over the entire haul route and in particular should avoid taking the aforementioned right and left turns by passing over theg gravel shoulder. Past experience has shown that this creates a disturbance at the location and has also ledi to materials being ejected from hauling vehicles. Applicant will be responsible for ensuring that this corner is clear of debris at the end of each day of operation. operations of thel NMM on the subject property. operations ofthe NMM on the Subject Property. 6. No wash plants or operations may be conducted as part of the 7. No hot mix operations of any kind may be conducted as part of the 8. A copy of the approved reclamation plan will be provided to the Town and kept on file. Applicant will not bring materials onto the Property such as fill, grade, mulch, grub debris except if those materials are needed and identified within an approved reclamation plan. Crushed concrete and crushed asphalt (i.e. bit conc.) may be brought on site in limited quantities to be used as part of preparing product for use on active road projects but only on an as needed basis and shall not be stockpiled. 9. Applicant will provide a written report to the Town with demonstrative pictures or diagrams each year for of the life of the opération on November 30 showing the current extent of the extraction operations and also the areas that have beenreclaimed during the previous year. 10. Applicant shall maintain an appropriate bond to allow for proper reclamation in accordance with the reclamation plan approved for the operation. 11. Applicant shall not commence any activities on the expanded territory covered byt the application until its reclamation plan has been approved by the appropriate authorities. 12. The requirements in the applicable Town and County ordinances shall apply to both the existing operation at the site and the contemplated expanded operation into the adjacent parcel to the north. The operations shall be considered a single operation under the control of the applicant and any CUP granted and approved by the County along with any conditions shall apply to the entire operation on both parcels going forward. 13. Ina addition, consistent with the purpose of the Town's NMM licensing ordinance, any operations at NMM/gravel pit operations conducted by the applicant in other areas of the Town, including at the so-called "North Pit," will hereinafter be conducted in compliance with the Town NMM licensing ordinance. 14. The Town. advises applicant that it is the. Town's position under applicable law that the approval of a CUP with conditions and the granting of a Town license does not waive any liability of an applicant or the owner of the subject properties in any respect for nuisance or other injuries or negligence properly found to be caused by the operations covered by the CUP and thé Town license. The Town advises applicant that it is the Town's position under applicable law that obtaining a CUP and Town license does not act to immunize the applicant from injuries caused by its actions in conducting its operations on the site expect to the extent of applicable law expressly exempts the applicant from legal liability in a particular case. Dated this 7h Day of June, 2023 Town of Skanawan BenjamilMehring, Town Chairman Exhibit3 3 Skanawan Property Owners Association July18, 2023 Town of Skanawan, RE: Mathy Construction Company Mathy Construction Company operates several non-metallic mines in Lincoln County. They have a strong history of complying with mining regulations in the county. In mye experience they have been cooperative and have complied with county requests regarding their operations. In addition, Ihave not heard any negative feedback from members oft the public about their mining operations. Ifyoul have any further questions about the non-metallic mining operations of Mathy Construction Company in Lincoln County, please feel free to contact me. Sincerely, Name Title Exhibit4 4 Skanawan Property Owners Association L665ZIZZOLE9ZO Lots of activity but no change in boundary. HUSCHBLACKWELL Eric M. McLeod Partner 331 East Main Street, Suite 300 Madison, WI53703 Direct: 608.234.6056 Fax: 608.258.7138 ncdaehsidwdon December 11, 2024 VIAI E-MAIL Lincoln County Board of Adjustment Attn: Phil Rausch, Chairman 801 N. Sales Street, Suite 201 Merrill, WI: 54452 Re: Appeal ofLand Services Committee's Approval of Mathy Construction Company's Request for Amendment ofl Existing CUP (CUP 96-1075). Subject Property: W4021 County Road S, Irma, WI54442 Dear Chairman Rausch: We represent Milestone Materials, a division ofMathy Construction Company (hereafter "Mathy") in connection with Mathy's request to amend an existing Conditional Use Permit (CUP-96-1075): allowing it to expand an existing quarry int the Town of Skanawan. The Lincoln County Land Services Committee ("LSC") approved Mathy's CUP request on June 8, 2023. Following the LSC's CUP approval, a group calling itself Skanawan Property Owners Association, U.A. ("SPOA") appealed to the Lincoln County Board ofAdjustment ("BOA"). On October 26, 2023, the BOA rejected SPOA's appeal and affirmed the LSC's decision. The SPOA subsequently filed a certiorari review action inl Lincoln County Circuit Court. Following briefing, and over the objections oft the County and Mathy, the Circuit Court held that the BOA had not properly considered the SPOA appeal and remanded the matter back to the BOA for another Mathy continues to oppose the SPOA appeal, and thej purpose oft this letter is to outline the reasons the BOA should reject this appeal following the Circuit Court's remand. Please note that Mathy previously submitted a letter to the BOA dated October 20, 2023, which outlined the reasons the SPOA appeal should be denied, and Mathy incorporates that letter as iff fully set forth herein. The Circuit Court's decision identified five specific arguments advanced by the SPOA that the BOA must now address on remand and Mathy specifically addresses each oft these items public hearing. below. HB: 4928-7364-3269.1 Husch Blackwell LLP HUSCHBLACKWELL Lincoln County Board of Adjustment December 11,2024 Page 2 The: following are arguments made by the SPOA appellants that the Circuit Court indicated must be addressed on remand. Mathy's position is included in response to each argument. 1. SPOA Argument: The Board acted unlawfully byj failing to hold a hearing at which The Circuit Court held that that the BOA was required to allow "public comment or argument at the hearing on this appeal." We understand the BOA plans to allow public comment at the upcoming hearing pursuant to certain reasonable time limits. We understand the BOA plans to allow representatives of SPOA, Mathy, and the LSC to make a presentation. Mathy believes these procedures satisfy the Circuit Court's requirements and we do not object to them. Mathy's counsel will be present at the hearing and plans to offer comments in response to arguments made by the SPOA. 2. SPOA Argument: The Board's decision is illegal because the county ordinance people were allowed to speak. prohibiting de novo review violates the law. The Circuit Court rejected this argument. The Court held that "de novo review was not required" and the applicable County Ordinance allowing this appeal expressly states that the Board is not to conduct de novo review. Ordinance $17.8.12(2)(b). Iti is Mathy's position that the BOA must follow its own County Ordinance in conducting this hearing. Even though state law allows Lincoln County to adopt an ordinance that provides for de novo review ofal lower decision, the County is not required to do sO and has not done SO. The Circuit Court held that the BOA's review authority is not limited to "procedural errors." Ordinance $17.8.12/2)(b) specifically provides that the BOA's review is "limited to determining whether the Committee's action considered the appropriate standards and met the requirements oft this chapter . As a legal matter, this means that the BOA should determine whether the LSC applied the correct standards for. consideration of Mathy's CUP application and whether the LSC's decision was reasonably supported by the information submitted in support oft the application. Because this is not a de novo review proceeding, the BOA must give deference to the LSCin making the ultimate decision to approve the CUP. Ifthel LSC. applied the correct standards and the information supports approval, then the BOA must affirm even ift the Here, the SPOA appellants have offered no valid argument in support oft their position that the LSC applied incorrect legal standards or that the information the LSC received BOA might choose to make a different decision. HB: 4928-7364-3269.1 HuschE Blackwell LLP HUSCHBLACKWELL Lincoln County Board of Adjustment December 11,2024 Page 3 did not warrant approval oft the CUP. Mathy addresses below the arguments the SPOA 3. SPOA Argument: The Board's decision is illegal because the committee decision that it reviewed did not follow the law requiring that conditional use permits must promote public health, safety and welfare; protect property values and the tax base; andj permit The SPOA appellants have not offered any valid argument to support their position that the LSC's approval oft the CUP: fails to "promote public health, safety and welfare; protect property values and the tax base; and permit careful planning and efficient Int the Circuit Court, the SPOA appellants argued that the LSC's decision did not comply with state law because it "failed to include in the CUP the conditions adopted by the Town that [SPOA claims] were protective of public safety, property values, the tax base, the safety and maintenance ofr roads, and that did permit the careful planning and efficient maintenance ofhighway systems." (SPOA Cir. Ct. Br. at 18) However, SPOA has offered no legal authority holding that the LSC must include conditions proposed by a township in its CUP. And there is no legal authority Mathy is aware oft that would The LSC included 17 conditions in its CUP approval that comprehensively address matters associated with quarry operations. Indeed, many oft the conditions proposed by the Town are covered by the LSC's conditions." For example, in CUP condition #1 the LSC includes aj prohibition against asphalt plants, cement plants, or blasting at the subject property. This addresses the Town's s proposed condition #7j prohibiting hot mix operations at the site. Other examples are as follows: CUP condition #3 addresses the substance ofTown condition #11 (requirement to obtain reclamation permit); CUP condition #4 addresses the substance ofTown condition #8 (no solid waste to be placed in the pit); CUP condition #8 addresses the substance ofTown condition #3 (establishment of designated entrances to the site); CUP condition #9 addresses the substance ofTown condition #10 (requirement ofaj performance bond). The CUP issued by the LSC includes several conditions not requested by the Town that impose even greater operational controls. See CUP conditions #2 (area and depth Mathy presumes the proposed Town conditions that SPOA refers to in its appeal are those contained in ar resolution the' Town adopted ati its June 5, 2023, meeting, and which are: also contained in a letter from have made and explains why those arguments are without merit. careful planning and efficient maintenance of highway systems. maintenance of highway systems." support that position. the Town's attorney, Joseph R. Cincotta, oft the same date. HB: 4928-7364-3269.1 Husch Blackwell LLP HUSCHBLACKWELL Lincoln County Board of Adjustment December 11, 2024 Page 4 restrictions), #5 (debris and equipment removal upon closure), #6 (set-back requirements), #7 (driveway pavement requirements to prevent tracking mud onto public roads), #10 (spraying to control dust), #11 (fuel storage location requirements), #12 (certificate ofinsurance), #14 (period compliance review), #17 (hours ofo operation). Finally, several ofthe Town's] proposed conditions involve an improper effort by the Town to enforce its own ordinances, including its nonmetallic mining licensing ordinance, through the CUP, and those conditions otherwise fail under Act 67. See Town proposed conditions #4 (attempt to enforce Town's licensing ordinance as a condition of CUP); #12 (attempt enforce Town ordinances in CUP); #13 (attempt to enforce licensing ordinance as a condition of CUP); #1 (attempt to enforce traffic, noise or nuisance laws asaCUP condition violates. Act 67); #2 (prohibition on engine braking violates Act 67). As noted above, it is unclear on the basis oft the SPOA's appeal which oft the Town's proposed conditions it believes should have been included in the CUP. Similarly, SPOA has failed to explain why the CUP approval and the conditions imposed by the LSC are in any way deficient or why the decision fails to "promote public health, safety and welfare; protect property values and the tax base; and permit careful planning and efficient maintenance of highway systems." The SPOA appellants cannot simply offer What is clear, however, ist that the LSC properly exercised its discretion to establish rigorous conditions that actually exceed the scope of what the Town had proposed. The LSC applied the proper standards and there is more than an ample basis to support the What is equally clear is that many oft the Town's proposed conditions are invalid under Act 67 or reflect an improper attempt to enforce Town ordinances in the CUP. There is no legal basis for SPOA to demand that the Town's proposed conditions be included in the CUP ini the first instance, but even ifthere were, the LSC's conditions largely address those matters and reflect the proper application of applicable standards. 4. SPOA Argument: The Board's decision is illegal because the committee lackedauthorily given that the relevant township had enacted a nonmetallic mining ordinance, rendering The Circuit Court did not address this argument other than to say the BOA must address unsupported rhetoric and demand a different result. CUP decision. county approval unnecessary. it. HB: 4928-7364-3269.1 Husch Blackwell LLP HUSCHBLACKWELL Lincoln County Board of Adjustment December 11, 2024 Page 5 SPOA's argument that thel LSC "lacked authority [to issue a CUP] given that the relevant township had enacted ai nonmetallic mining ordinance, rendering county approval unnecessary" is frivolous. Indeed, the law compels the opposite result. With respect to quarry operations, county zoning ordinances take priority overt town nonmetallic mining ordinances. Pursuant to Wis. Stat. $ 66.044/(3)()3., "A political subdivision that requires a quarry operator to obtain a nonmetallic mining licensing permit under this subdivision may not impose ai requirement in the nonmetallic mining licensing permit pertaining to any matter regulated by an applicable zoning ordinance or addressed through conditions imposed or agreed to in aj previously issued and effective conditional use permit." In other words, a county zoning ordinance and a CUP issued pursuant to such ordinance preempt conflicting or overlapping town regulation in a nonmetallic The SPOA has not offered any support for this argument, and it should be rejected by the 5. SPOA Argument: The committee decision was illegal because the committee violateda county ordinance requiring it to list reasons for its actions; thus, there was no valid The Circuit Court did not address this argument other than to say the BOA must address it. However, there is no merit to this argument and the SPOA has again failed to offer any The LSC conducted a lengthy public hearing on Mathy's CUP application. The LSC reviewed the application, considered staffi reports and recommendations, received testimony from the applicant, the public and township officials. The LSC discussed the information it had received and addressed the reasons for approving the application. The members of the LSC then voted to approve the CUP with the 17 conditions. All that the SPOA now offers are general assertions, not references to the record in an effort to support its argument. The County ordinance provides that the LSC "shall provide the reasons fori its action . $ 17.8.30(6). The LSC did so in the context oft their discussions on the record at the. June 8, 2023, public hearing. The SPOA must show that there is some actual deficiency in the manner in which the LSC conducted the hearing or decided the issue. It cannot simply assert the LSC failed provide the reasons fori its decision when the LSC clearly found that 17 detailed operational conditions set forth in the CUP itself were sufficient to satisfy the standards for approval. In this matter the LSC mining licensing ordinance. BOA. decision) for the Board to review. support fori it. HB: 4928-7364-3269.1 HuschE Blackwell LLP HUSCHBLACKWELL Lincoln County Board of Adjustment December 11,2024 Page 6 did its job with great care. It conducted a lengthy public hearing and sifted through a On behalf ofMathy, we thank the BOA for its consideration of the issues presented in this lengthy record. appeal. For the foregoing reasons, SPOA's appeal should be denied. Sincerely, IUSCIBLACKVELLIP Eelltl Eric M. McLeod KT cc: Jim Beaumont, BOA Member Curtis Powell, BOA Member Kim Brixius, BOA Member Mary Ann Gretenhardt, BOA Member Danielle Tierney, Counsel for BOA Karry A. Johnson, Corporation Counsel Mike Huth, Zoning Program Manager Kathleen Henry, Counsel for SPOA HB: 4928-7364-3269.1 Husch Blackwell LLP HUSCHBLACKWELL Eric M. McLeod Partner 33 East Main Street, Suite 300 Madison, WI53703 Direct: 608.234.6056 Fax: 608.258.7138 eNcagahsdiadwllon October 20, 2023 VIA E-MAIL Karry A. Johnson Lincoln County Corporation Counsel 801 N. Sales Street, Suite 207 Merrill, WI 54452 mpphmgroalmalnwins Re: Appeal ofLand Services Committee's Approval ofl Mathy Construction Company's Request for Amendment ofExisting CUP (CUP 96-1075). Subject Property: W4021 County Road S, Irma, WI54442 Dear Ms. Johnson: Wei represent Milestone Materials, a division of Mathy Construction Company (hereafter "Mathy") in connection with Mathy's request to amend an existing Conditional Use Permit (CUP-96-1075) to allow for the expansion ofa an existing quarry operation in the Town of Skanawan. At aj public hearing on June 8, 2023, the Land Services Committee ("LSC") approved Mathy' 's request. Following the LSC's approval of the CUP amendment, an entity calling itself Skanawan Property Owners Association, U.A. ("SPOA")s submitted an appeal ofthe LSC's decision. A copy oft the appeal documents that have been provided tol Mathy are enclosed with this letter as Exhibit. A. Mathy opposes the SPOA's appeal and respectfully submits this letter to you outlining the reasons the appeal should be denied and requests that you properly advise the Lincoln County Board of Adjustment ("BOA") oft these reasons as the BOA considers this appeal. I. The SPOA Appeal According to its appeal documents, SPOA's "claim on appeal is based on its objection to thel LSC: not considering and adopting conditions for the CUP as recommended by the Town [of Skanawan], inj particular those that were agreed to by the Applicant." (Appeal, p.2.)1 In an effort to support this claim, SPOA asserts that "Wis. Stats. $ 59.69(5e) and applicable law requires that conditions agreed tol by an applicant are to be made part ofthe approveld] CUP." (Id.) SPOA also asserts that "thej proposed conditions by the Town, including but not limited to those that were agreed to by the applicant, are reasonable and in compliance with the HB: 4884-6966-9510.1 Husch Blackwell LLP HUSCHBLACKWELL Karry A. Johnson October 20, 2023 Page 2 requirements of Wis. Stat. $ 59.69(5e)." (Id.) Finally, SPOA asserts that the "LSC's decision violates Wis. Stats. $ 59.69(1) ini that it does not promote the public health, safety, convenience and welfare oft the Town of Skanawan, and further fails to protect property values and the tax base." As discussed below, each of SPOA's stated reasons for appeal is without merit and the appeal should be rejected by the BOA. II. Skanawan Property Owners Association, U.A. Lacks Standing Pursuant to Lincoln County Code $ 17.8.65(2), "Ip/roceedings for an appeal may be initiated by any, person aggrieved, or by any officer, department, board, or bureau oft the County affected . (emphasis added). SPOA is clearly not an "officer, department, board, or bureau of the County." Thus, in order to maintain this appeal, SPOA must be a' "person aggrieved."It should be noted that this is precisely the same requirement set forth in state statutes. Pursuant to Wis. Stat. $ 59.694(4), appeals to a board of adjustment "may be taken by any person aggrieved . Neither the County ordinance nor the state statute allows aj person to initiate an appeal to the BOA without aggrieved party status. Nowhere in its appeal document does SPOA allege it is aggrieved by the LSC's CUP decision ati issue, let alone articulate any basis for aggrieved party status. Mere opposition to the LSC's decision allowing for the expansion ofan existing quarry operation does not confer standing upon aj party to appeal that decision. A party seeking to appeal a decision oft the LSC must clearly explain the manner in which that decision harms their personal interests. There has been no effort by SPOA to articulate any basis for aggrieved party status and, accordingly, SPOA lacks standing to maintain this appeal. Because SPOA lacks standing to bring this appeal, the appeal should be summarily dismissed by the BOA. III. SPOA Fails To Articulate Any Valid Basis For Appeal The BOA has been established by Lincoln County Code S 17.8.12. According to the ordinance, the BOA has authority to "[h]ear and decide appeals where it is alleged that there is an error in any decision oft the Land Services Committee related to a conditional use permit request!." $ 17.8.12(2)(b). That section also defines the standard by which the BOA's review of aCUP decision is to be conducted. In particular, "such review [is] limited to determining whether the Committee's: action considered the appropriate standards and met the requirements ofthis chapter, as opposed to the Board of Adjustment conducting a de novo review." Id. In other words, the BOA does not reconsider the LSC's decision anew, but simply determines whether the LSC applied the correct standards and requirements in reaching that HB: 4884-6966-9510.1 HuschE Blackwell LLP HUSCHBLACKWELL Karry A. Johnson October 20, 2023 Page3 3 decision. The BOA'sI review is also limited to the record considered by the LSC. The BOA does not receive new information or consider matters outside the LSC's record. A. The LSC was not required to include conditions recommended by the Town. SPOA's principal basis for appeal is their argument that the LSC was legally required to consider and adopt conditions recommended by the Town. More specifically, SPOA appears to argue that conditions proposed by the Town that Mathy would have agreed to must be included ini the CUP. There is no such legal requirement in either the County's ordinances or in state statute. Lincoln County Code S 17.8.30(7) sets forth the standards that apply to the LSC's consideration ofa CUP request. Ofimportance here ist the following requirement: "Ifa an applicant for a conditional use permit meets or agrees to meet all ofthe requirements and conditions specified in the county ordinance or those imposed by the Land Services Committee, the county shall grant the conditional permit." Importantly, this requirement is mandated by state statute and specifically tracks the language of Wis. Stat. $ 59.69(5e)(Tfan: applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the county ordinance or those imposed by the county zoning board, the county shall grant the conditional use permit.") There is no requirement in the County ordinance or under state law that thel LSC: must either consider or adopt conditions recommended by a township. Similarly, there is no requirement that the LSC adopt town-recommended conditions to which the applicant would have otherwise agreed. The language oft the ordinance and statute provides that a CUP shall be issued ifthe applicant "agrees to meet all oft the : conditions : imposed by the [LSC." That language says nothing about the applicant's agreement to conditions the LSC does not deem necessary or appropriate to impose in a CUP, whether such conditions are proposed by a township or anyone else. SPOA does not specify what conditions they believe the LSC should have included int the CUP. Thus, it would require speculation to determine what those conditions may be. However, such an effort is pointless as there is no legal support for the SPOA's argument ini the first place. B. SPOA's general assertion that the LSC decision violates Wis. Stat. $59.69(fails As noted above, SPOA asserts that "LSC's decision violates Wis. Stats. $ 59.69(1) int that it does not promote the public health, safety, convenience and welfare oft the Town of Skanawan, and further fails toj protect property values and the tax base." SPOA fails to offer any further under Wis. Stat. $59.69(5e) HB: 4884-6966-9510.1 Husch Blackwell LLP HUSCHBLACKWELL Karry A. Johnson October 20, 2023 Page 4 explanation, let alone point to any evidence in the record, to support this general assertion. Decisions based on this type of vague, unsupported allegation is precisely what Wis. Stat. $ 59.69(5e) was intended to prevent. Wis. Stat. $ 59.69(5e) was enacted pursuant to 2017 Wisconsin Act 67 ("Act 67") for the purpose ofe ensuring that CUP decisions were subject toi faira and objective standards and made on the basis of"substantial evidence." Pursuant to. Act 67, CUP decisions cannot be based on conclusory assertions that a particular use will, by way of example, negatively affect property values. Ifaj party opposes a CUP on the basis that the use authorized by the CUP will affect property values, the party must offer substantial evidence supporting that claim. An assertion without substantial evidence to support it cannot be considered. Yet, that is precisely what SPOA seeks to dol here. SPOA's failure to point to substantial evidence in support of their general assertions require that the BOA reject those assertions and deny SPOA's appeal on that basis. C. Thel LSCi included conditions in the CUP that address the matters raised by the The CUP issued by the LSC includes 17 conditions that comprehensively address matters associated with quarry operations. Indeed, many oft the conditions proposed by the Town are covered by the LSC's-conditions." For example, in CUP condition #1 the LSC includesa prohibition against asphalt plants, cement plants, or blasting at the subject property. This addresses the Town's proposed condition #7 prohibiting hot mix operations at the site. Other examples are as follows: CUP condition #3 addresses the substance ofTown condition #11 (requirement to obtain reclamation permit); CUP condition #4 addresses the substance ofTown condition #8 (no solid waste to bej placed ini the pit); CUP condition #8 addresses the substance ofTown condition #3 (establishment of designated entrances to the site); CUP condition #9 addresses the substance ofTown condition #10 (requirement ofaj performance bond). Indeed, the CUP issued by the LSC includes several conditions not requested by the Town that impose even greater operational controls. See CUP conditions #2 (area and depth restrictions), #5 (debris and equipment removal upon closure), #6 (set-back requirements), #7 (driveway pavement requirements to prevent tracking mud onto public roads), #10 (spraying to control dust), #11 (fuel storage location requirements), #12 (certificate ofinsurance), #14 (period Town's proposed conditions. compliance review), #17 (hours of operation). Mathy presumes the proposed Town conditions that SPOA refers toi in its appeal are those contained in aresolution the Town adopted at its June 5,2 2023, meeting, and which are also contained in al letter from the Town's attorney, Joseph R. Cincotta, oft thes same date. HB: 4884-6966-9510.1 HuschE Blackwell LLP HUSCHBLACKWELL Karry A. Johnson October 20, 2023 Page 5 Finally, several oft the Town's proposed conditions involve an improper effort by the Town to enforce its own ordinances, including its nonmetallic mining licensing ordinance, through the CUP, and those conditions otherwise fail under Act 67. See Town proposed conditions #4 (attempt to enforce Town's licensing ordinance as a condition ofCUP); #12 (attempt enforce Town ordinances in CUP); #13 (attempt to enforce licensing ordinance as a condition ofCUP); #1 (attempt to enforce traffic, noise or nuisance laws as a CUP condition violates Act 67); #2 (prohibition on engine braking violates Act 67). As noted above, iti is unclear on the basis oft the SPOA's appeal which of the Town's proposed conditions it believes should have been included in the CUP. What is clear, however, ist that the LSC properly exercised its discretion to establish rigorous conditions that exceed the scope of what the Town had proposed. What is equally clear is that many oft the Town's proposed conditions are invalid under. Act 67 or reflect an improper attempt to enforce Town ordinances in the CUP. There is no legal basis for SPOA to demand that the Town's proposed conditions bei included int the CUP in the first instance, but even ifthere were, the LSC's conditions largely address those matters and reflect the proper application of applicable standards. IV. Other Considerations. A. State law precludes the BOA from hearing CUP appeals. Boards of adjustment are authorized by Wis. Stat. $ 59.694. That statutory section defines the scope of board of adjustment authority. In particular, sub. (7) oft that statute provides inj part as follows: (7) POWERS OF BOARD. The board of adjustment shall have all oft the following powers: (a)1 To hear and decide appeals where it is alleged there is error in an order, requirement, decision or determination made by an administrative official in the enforcement of (b) To hear and decide special exceptions to the terms of the ordinance upon which the (c)2. To authorize upon appeal in specific cases variances from the terms oft the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement oft the provisions oft the ordinance will: result in unnecessary hardship, and SO that the spirit oft the ordinance shall be observed and S. 59.69 or ofany ordinance enacted pursuant thereto. board is required to pass under such ordinance. substantial justice done. HB: 4884-6966-9510.1 HuschE Blackwell LLP HUSCHBLACKWELL Karry A. Johnson October 20, 2023 Page 6 (d) To grant special exceptions and variances for renewable energy resource systems. If the board denies an application for a special exception or variance for such a system, the board shall provide a written statement ofi its reasons for denying the application. In this paragraph, "renewable energy resource system" means a solar energy system, a waste conversion energy system, a wind energy system or any other energy system which relies on a renewable energy resource. Nowhere listed among these powers ist the power to review a CUP decision made by a zoning committee such as the LSC. Sub. (7)(a) expressly provides boards of adjustment with the power to "hear and decide appeals" oforders, requirements, decisions or determinations "made by an administrative oficial..." (emphasis added.) A zoning committee is not an administrative official. Thus, a board of adjustment does not have authority under this subsection to review CUP decisions made by a zoning committee. Similarly, Wis. Stat. $ 59.694(4), which also addresses appeals to a board of adjustment, APPEALSTOBOARD. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau oft the municipality affected by any decision of the building inspector or other administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules oft the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice ofappeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board of adjustment all the papers constituting the Just like sub. (7)(a), sub. (4) only provides for appeals of decisions oft the building inspector or other administrative officer. It does not provide forr review of the decision ofa zoning does not include appeals ofCUP decisions made by a zoning committee: record upon which the action appealed from was taken. committee. As noted above, the language ofLincoln County code $ 17.8.12(2)(b). purports to allow BOA review ofCUP decisions made by the LSC.2 However, that code section exceeds the scope ofthe state statute authorizing the creation ofboards of adjustment and defining the scope of theirauthority. Accordingly, that code section is unenforceable, and this appeal must be dismissed. Any appeal of the LSC's decision must be filed in circuit court. 2 We would also note thei inconsistency between $ 17.8.12(2)(b): and $ 17.8.30(10). The latter section specifically addresses appeals of CUP decisions following Act 67 and provides that Iift the Committee denies aj person's conditional use permit application, the person: may appeal the decision to the circuit court under thej procedures contained in $59.694(10)." This appeal is improper. HB: 4884-6966-9510.1 Husch Blackwell LLP HUSCHBLACKWELL Karry. A. Johnson October 20, 2023 Page 7 B. Matters outside the record and/or not addressed in the Appeal submission. We are aware that SPOA has submitted public records requests to the County seeking a variety ofinformation about matters that are outside oft the record before the LSC. It is unknown what information or arguments the SPOA may seek toj present to the BOA, but we urgeyout to remind the BOA that information outside ofthe record may not be considered in this proceeding. Any such information, to the extent it is even relevant to the Mathy's CUP application or the BOA'sconsideration ofthat application, should have been presented to the LSC. Moreover, Mathy objects to any new arguments that SPOA may present prior to or at the time ofthel BOA hearing. The BOA should base its consideration oft this appeal on the matters presented by SPOA in its appeal submission. Allowing additional arguments after the 30-day appeal deadline is legally improper as it would violate the 30-day appeal requirement and deny Mathy fair notice oft the basis for the appeal and deprive it ofa reasonable opportunity to respond to any such arguments. That said, Mathy reserves the right to respond to any new arguments SPOA may make prior to or at the BOA hearing. V. Conclusion For the foregoing reasons, SPOA'sa appeal should be denied. Sincerely, HUSCHBLACKWELLLLP Elellll Eric M. McLeod KT cc: Mike Huth, Zoning Program Manager Board of Adjustment HB: 4884-6966-9510.1 Husch Blackwell LLP STATEOF WISCONSIN SKANAWAN PROPERTY OWNERS ASSOCIATION, U.A., Appellant, BOARDOF. ADJUSTMENT LINCOLNI COUNTY and Permit: CUP-96-1075 LINCOLN COUNTYLAND: SERVICES COMMITTEE, Respondent, MILESTONE MATERIALS, adivision ofN Mathy Construction Co., Appliceant-Respondent and LINCOLN COUNTY LAND SERVICES COMMITTEE WRITTEN SUBMISSION TO BOARD OF ADJUSTMENT The Lincoln County Land Services Committee (hereinafter "LSC"), by its attorney Karry A. Johnson, Corporation Counsel, respectfully submits the following in support ofi its request that the Board ofA Adjustment make appropriate findings and uphold the decision oft the LSC: as stated verbally on June 8, 2023 (and as further entered in the Notice of Action dated June 12, 2023) which granted, on condition, the request by Milestone Materials, a division of Mathy Construction Company (hereinafter* "Milestone"),to amend an existing Conditional Use Permit (CUP-96-1075). STANDARD OF REVIEW The Appeal oft the Skanawan Property Owners Association, U.A. (hereinafter "SPOA") is being heard by the Board of Adjustment pursuant to Lincoln County Code (LCO,17.8.22Xb), which provides that the Board of Adjustment shall have the duty and responsibility to "Th]ear and decide appeals where iti is alleged that there is an error in any decision of the Land Services Committee related toa conditional use permit request, with such review limited to determining whether the Committee's action considered the appropriate standards and met the requirements of this chapter, as opposed to the Board of Adjustment conducting a de novo review." The circuit court order entered on August 22, 2024 (hereinafter "the order")remanding this matter back to the Board of Adjustment requires that, on top of the review scope described in LCC $17.8.12(2)b), the Board of Adjustment must also consider the original issues raised in the appeal by SPOA, as well as five issues identified for consideration int the order for remand. The order does not 1All references toi thel Lincoln County Code of Ordinances are tot the 2023 version which were in effect ati the time oft the original appeal by SPOA to the Board of Adjustment in this matter. 1IPage require the Board of Adjustment to conduct a de novo review but notes that due process may require that additional evidence be received. LSC argues that the record before the Board of Adjustment is sufficient to decide all issues before the Board and that no additional evidence is needed. LSC further argues that the issue surrounding the Town of Skanawan's (hereinafter t the Town") Nonmetallic Mining Ordinance is a legal issue that does not require additional evidence to decide. This issue will be addressed more fully later in this briefunder the appropriate section, as will all other issues for the Board's consideration. RELEVANT FACTS This is an appeal ofa decision oft the LSC to grant, on condition, the request by Milestone to amend its existing conditional use permit (hereinafter "CUP"), specifically CUP-96-1075. Priorto holdinga a public hearing on the issue, notice of the public hearing was provided and the Town was provided an opportunity to offer their recommendation related to the CUP. The LSC held public hearings on both May 18, 2023 and. June 8, 2023. As the Town had requested prior to the May 18, 2023 hearing that it be granted an extension SO it could further discuss and/or consider the CUP, the LSC (while still conducting the public hearing on May 18), then continued the matter to the next LSC meeting to allow the Town an opportunity to provide its feedback. The LSC then noticed and held a second public hearing on the matter, on. June 8, 2023, at which time the public was again afforded the opportunity to speak/testify. The LSC ultimately voted to approve the modification to the CUP-96-1075 as requested by Milestone, with seventeen (17)conditions imposed as a part oft the action. REVIEW REQUIRED UNDER LCCS17.8.122Xb) As indicated, this appeal and the original appeal to the Board of Adjustment was made under Lincoln County ordinance $17.8.12(2)(b), which provides that the Board of Adjustment shall "Th]ear and decide appeals where it is alleged that there is an error in any decision of the Land Services Committee related to a conditional use permit request, with such review limited to determining whether the Committee' s action considered the appropriate standards and met the requirements of this chapter, as opposed to the Board of Adjustment conducting a de novo review." As such, under the ordinance, the Board must determine ifthe LSC'saction I) considered the appropriate standards; and 2) met the requirements ofLCC Chapter 17. I. The LSC's Action Considered the Appropriate Standards Asi is evident from the recording oft the LSC meeting on June 8, 2023, the LSC took additional public commentlestimony from both proponents and opponents of the CUP. Once all opponents to the CUP were heard, the LSC allowed a representative from Milestone to offerany rebuttal comments/testimony which included further explanation that there are in fact two separate pits located in the same general area: the Coombs South Pit, which is subject to the 2Page County zoning and the: subject ofthe request to modify the CUP96-1075: and the Coombs North Pit, which existed priort to the enactment ofCounty zoning laws and therefore is grandfathered in as a legal non-conforming use. To be clear, the request to modify the existing CUP-96-1075 relates to the Coombs South Pitonly. However, although County zoning ordinances do not apply to the Coombs North Pit, the Milestone representative indicated that they tend to follow the same conditions in the Coombs North Pit as are in place for the Coombs South Pit (although not legally required to do SO). Throughout the public hearing, the LSC members asked appropriate questions of opponents, staff, legal counsel and the highway commissioner for Lincoln County who was present. Those questions addressed not only the recommended conditions from the Lincoln County Land Services/Zoning Administrator, but also questions related to the Town'ss suggested conditions for the CUP and legal questions related to whether or not certain conditions could be imposed. The requirements of state statute were addressed, which demonstrate the limited discretion a County LSC has to deny conditional use permits to applicants. Both state statute and county ordinance require that any conditions imposed be based on substantial evidence. Both further require that that ifa an "applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the county ordinance or those imposed by the county zoning board, the county shall grant the conditional use permit. Any condition imposed must be related to the purpose oft the ordinance and be based on substantial evidence." (Emphasis added) Wis. Stat. $59.69(5e)(a)2. defines "substantial evidence" as "facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support ofa conclusion." Although the opponents oft the CUP from SPOA expressed concerns related to traffic, noisy trucks, the condition ofCounty Trunk Highway (CTH)S as well as their property values, those expressions of concern were mere "personal preferences or speculation". At no time did any member of SPOA or any other opponent of the CUP present actual evidence that property values have or would decline or that certain traffic or safety concerns were related solely tot trucks coming out oft the Coombs South pit (as opposed to the Coombs North pit or some other location along CTHS S). The LSC properly considered the evidence before it together with the appropriate standards under both Lincoln County Code of Ordinances and state statute. SPOA has not demonstrated that the LSC did not consider the appropriate standards relevant to the conditional use permit at issue. 3Page II. The LSC's Action Met the Requirements ofLCCC Chapter 17 Chapter 17 ofthe Lincoln County Code of Ordinances is broadly described as the Zoning Code. Throughout its several sections and subsections a variety of different topics are addressed, from zoning districts to signs to procedures and administration. Itis under this latter category that LCC $17.8.30, Conditional Use Review and Approval Procedures, is found. This section of code sets forth the purpose and procedures tol be followed in seeking a conditional use permit, review of such requests including Town recommendations and hearing procedures as well as how such decisions are reviewed. LCC $17.8.30(7): sets forth the standards to be applied tos such conditional use permit requests, which again requires that the "substantial evidence" standard be followed. Furthermore, this code provision indicates that the Committee "may impose reasonable conditions with the approval ofa conditional use proposal, to the extent authorized by law as described in 59.69(5e)(2b), Wis. Stats." The ordinance then sets forth five criteria which all conditions must meet. These five criteria include, among other things, that conditions be reasonable, practical and to the extent practicable, that they be measurable, with conditions such as duration, transfer or renewal oft the permit. It also requires that conditions be related to the purpose oft the ordinance, as outlined in Section 17.3 regarding the specific land use, and again that the same be based on substantial evidence. The seventeen (17)conditions recommended by Lincoln County staffand ultimately imposed by the LSC as conditions on the approval of the modification to the CUP all meet this criteria. There has not been any argument or suggestion that the conditions imposed do not satisfy the criteria or are somehow inappropriate. However, some of the conditions recommended by the Town, do not meet these criteria and include requests that are not related to purpose of the ordinance as outlined above. So while the LSC'saction and decision met both statutory requirements and the requirements ofLCC Chapter 17, some oft the Town's recommended conditions did not. Because the LSC's decision and action in this matter considered the appropriate standards and met the requirements ofl LCC Chapter 17, that decision granting the requested modification to the existing CUP 96-1075 should be upheld. THREE ISSUESIDENTIFIED IN ORIGINAL APPEAL BYSPOA The Board of Adjustment must also consider the three issues that were initially raised by SPOA in their appeal document provided to the Board of Adjustment in 2023 prior to the October 26, 2023 Board of Adjustment hearing. Those issues were each be addressed in turn below. 2For example, that the applicant be responsible for traffic or noise violations fori truck operators who are not employed by the applicant, or that there be no exhaust or engine braking allowed at any time. 4IPage I. Whether LSC Failed to Consider and Adopt the Town's Recommended CUP Conditions and Whether Those Conditions Were Required to Be Made Part oft the This argument by SPOA is without merit. The Town issued a written document indicating that it approved issuance oft the CUP but only ift the Town's suggested conditions were madea part oft the CUP. The document issued by the Town, with their proposed conditions, was provided to the LSC members and it was reviewed and considered by them. Approved CUP However, there is no legal authority that a Town's proposed conditions fora CUP under the present circumstances are required to be made a part ofthe approved CUP, and SPOA cites no legal authority for the same. To the contrary, state statute provides that ifa an "applicant fora conditional use permit meets or agrees to meet all oft the requirements and conditions specified in the counly ordinance or those imposed by the county zoning board, the county shall grant the conditional use permit... " Wis. Stat. $59.69(5e)(a)2 (Emphasis added). Similarly, whileLCC 17.8300)provides for the provision ofai recommendation from a Town to the County LSC, nothing in those provisions requires the LSC to agree with or adopt the Towr'srecommendation II. Whether the Town's Proposed Conditions Were Reasonable and In Compliance with or any proposed conditions. There is no authority for SPOA's contention. Wis. Stat. $59.69(5e) LSC would first assert that whether the Town's proposed conditions were or were not in compliance with Wis. Stat. $59.69(5e) is irrelevant, as the LSC was not required to adopt any of the proposed conditions in the granting oft the CUP to Milestone. With that said, as noted previously herein, some of the conditions suggested by the Town did not meet the statutory criteria of being reasonable, and arguably were not measurable. Many of the suggested conditions also did not relate to purpose oft the ordinance, as required under LCC $17.8.30(7)and furthermore were not supported by substantial evidence. However, some of the Town's conditions were similar to, or had substance such that they would be contained within the LSC's recommended and approved conditions. But since the LSC was not required to adopt any oft the Town's proposed conditions, whether any oft the conditions were reasonable or in compliance III. Whether the LSC Decision Violates Wis. Stat. $59.69(1) Because the Decision Does Not Promote the Public Health, Safety, Convenience and Welfare oft the Town of Skanawan, There has been no evidence that the LSC decision does not promote the public health, safety, convenience and general welfare, as opposed to SPOA's contention that the LSC decision must somehow promote such amenities for the Town of Skanawan only. Similarly, SPOA'sal allegation with state: statute isn'trelevant to this appeal. and Fails to Protect Property Values and Tax Base 5Page that granting the CUP to Milestone somehow fails to protect property values ort tax base is mere conjecture and speculation. There has been no evidence, much less evidence that meets the statutorily required standard of substantial evidence, that the granting oft the CUP has had any impact on property values or tax base, much less any impact on public health. safety, convenience and the general welfare for the general public or more. specifically for the Town of Skanawan. These. assertions are simply preferences and concerns raised by residents, but without the: slightest shred of evidence to support the contentions, and as such, are without merit. FIVE. ISSUES IDENTIFIED BYTHE ORDER FOR BOARD OF ADJUSTMENT CONSIDERATION I. Whether the Board Acted Unlawfully by Failing to Hold a Hearing at Which the The original Board of Adjustment hearing on this appeal was held on October 26, 2023. At the time of that hearing, the Board addressed only procedural matters related to the LSC Public was Allowed to Speak decision made on June 8, 2023. While the LSC believes that, given the limited scope ofreview by the Board at the hearing (not a de novo review hearing) that the Board of Adjustment was not required to take new testimony, the LSC argues that the Board may have been required to at least hear argument from all sides on the issue, whether that argument was in the form oforal argument from the parties/attorneys, or possibly public comment which could have also been construed as "argument" rather than "evidence". The order provides that the Board "did not proceed on a correct theory ofl law when it disallowed public comment or argument at the hearing on this appeal." As relevant to this remanded appeal, the LSC argues that sO long as the public is provided an opportunity to offer comment, and that the same is construed as argument not evidence, then the Board of Adjustment is not acting unlawfully or proceeding on an incorrect theory ofl law. II. Whether the Board's Decision is Illegal because the County Ordinance Prohibiting Del Novo Review Violates State Law The determination of this issue depends upon whether or not the Lincoln County's ordinance, specifically LCC $17.8.12(2)b), which allows the Board of Adjustment to review CUP appeals, but which prohibits de novo reviews, violates state law. The LSC argues that iti is not the role of the Board of Adjustment to declare county ordinances illegal. Nonetheless, the ordinance ati issue here does not violate state law. Rather, it is consistent with statutory provisions related to conditional use permits and procedures for the County's handling ofthe 6IPage same under Wis. Stats. $59.69(5e). Frankly, based upon the statutory language, the applicant may have had an argument that given the statutory language", that the Board of Adjustment was precluded from hearing the appeal all together. However, given the conflicting language between the statute and LCC $17.8.12(2)(b) as to who would hear the appeal (circuit court VS. Board of Adjustment), the Board of Adjustment elected to hear the appeal to provide the greatest remedy available to SPOA. Under these circumstances, the Board's decision was not and is not illegal because the County's ordinance does not violate state law. The County'sordinance, although limiting Board of Adjustment review to exclude de novo review, still provided a greater remedy II. Whether the Board's Decision is Illegal Because the Committee Decision that it Reviewed Did Not Follow the Law Requiring Conditional Use Permits Promote Public Health, Safety and Welfare, Protect Property Values and Tax Baseand Permit Careful Planning and Efficient Maintenance of Highway Systems The Board of Adjustment did not reach the merits of any legal assertions related to the LSC decision as it felti it could or should only address whether procedural due process was followed. As such, the Board of Adjustment must now review the merits oft the LSC decision, which iti is also tasked with doing under LCCS $178.122Xb/(Board of Adjustment's review is limited to determining "whether the Committee's action considered the appropriate standards and tos SPOA than what the state statute provided. met the requirements oft this chapter..."). AC County's discretion and ability to deny a conditional use permit is extremely limited by statute. Asrelevant here, Wis. Stat. $59.69(5e)* provides: (5e) Conditional Use Permits. a) In this. subsection: variance. 1." "Conditional use' means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a county, bul does not includea 2.1 "Substantial evidence' " means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons wouldaccept in support ofaconclusion. 359.69 (5e) (e) provided, at the time relevant toi this appeal as follows: "lfa county denies a person's conditional use permit application, the person may appeal the decision to the circuit court under the procedures contained in S.5 59.694(10)." While this language did not change, additional language was added toi this subsection by 2023 Wis. Act: 16. Similarly the Notice of Action issued byt the LSCi ini this matter, while providing broader appeal rights to "any person aggrieved" (instead ofj just: the "ap person" whose conditional use permit application was denied) similarly indicated that the appeal should be made tot the circuit court under the procedures contained in Wis. Stat. 42023 version of the statute in effect at the time of the appeal and without changes made by 2023 Wis.Act16. $59.694(10). 7IPage (b) 1.4 Ifana applicant forac conditional use permil meets or agrees 10 meet all ofthe requirements andconditions specified in the county ordinance or those imposedby the countyz zoning board, the county shall grant the conditional use permil. Any condition imposedmus be related to the purpose of the ordinance and be based on. substantial 2. The requirements and conditions described unders subd. 1. must be reasonahle and, lo the exlent practicable, measurable. and muy include conditions such as the permit's duration, transfer, or renewal. The applicant must demonstrale that the application and all requirements andconditions established. by the counly relating to the conditional. use ure or shall be: satisfied, both ofwhich must be supported by substantial evidence. The counly'sa decision to approve or deny the permit must be: supported by. substantial (c) Upon receipt ofaconditional use permit application, and) following publication in the county afaclass. 2 notice under ch. 985, the county shall holday public hearing on the (d) Once granted, a conditional use permit shall remain in effèct as long as the conditions upon which the permit was issued are followed, bul the county may impose conditions. such aIS the permil 's duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the county zoning board. (e). Ifacounty denies a person 's conditional use permit application, the person muy appeal the decision to the circuit court under the procedures contained, in S. 59.694 (10). evidence. evidence. application. The County's ordinance related to Conditional Use Permits, specifically LCC $17.8.30 mirrors this statutory language, in that it provides that if"an applicant for a conditional use permit meets or agrees to meet all oft the requirements and conditions specified in the county ordinance or those imposed by the Land Services Committee, the county shall grant the conditional use permit." Similarly, the ordinance has adopted the statutory provisions regarding the need for "substantial evidence" and the requirement that any conditions imposed by "any condition must be reasonable and to the extent practicable, measurable and may include conditions such as the permits duration, transfer, or renewal" and further that conditions "must be related to the purpose of the ordinance, outlined in Section 17.3 regarding the specific land use and be based on substantial evidence." While the general purpose oft the entirety of Chapter 17 includes "protecting the public health, safety, morals, comfort, convenience and general welfare of the residents ofLincoln County," there is no support for SPOA'scontention that the Committee has to consider or condition the CUPt to "protect property values and tax base" or to "permit careful planning and efficient maintenance ofh highway systems." To the extent SPOA argues the same should be considered in issuing a conditional use permit, whether as a consideration in granting the permit or as ap part of conditions imposed, such considerations are neither required nor allowed under Wis. Stat. $59.69(5e)c or Lincoln County ordinances. Rather, to the extent such conditions or 8'Page requests are not based on substantial evidence, nor are related to the purpose of the ordinance, such conditions would be illegal under the statute and code provisions. Ass such, the Committee's decision was lawf ful and followed the appropriate considerations under state law and county ordinances. To the extent the Board of Adjustment's IV. Whether the Board's Decision is Illegal Because the Committee Lacked Authority Given that the Relevant Township Had Enacted a Non-Metallic Mining Ordinance, The Committee was not required to defer to the Town's Non-metallic mining (NMM) ordinance. The Town of Skanawan previously adopted county zoning provisions, which requires compliance with those provisions. Neither Lincoln County Code nor state statute allows or requires a county committee to consider the provisions ofa Town's NMM ordinance when considering a CUP. The County does not enforce the Town's ordinances and the LSC takes no position on whether or not the Town'so ordinance is valid or enforceable as to this applicant. Rather, ini reviewing the LSC's decision, the LSC acted entirely within its authority by not considering or deferring to the Town's ordinance in this matter. The committee did seek and receive input from the Town as provided fori in LCC $17.8.30(5), however those provisions do decision upheld that decision, it was not illegal. Rendering County Approval Unnecessary not require that the LSC agree with or follow the recommendation. Ins addition, Wis. Stat. $66.0441(3)a)3 provides, "A political subdivision may not require aquarry operator of an active quarry to obtain a conditional use permit or nonmetallic mining licensing permit to conduct quarry operations unless prior to the establishment of quarry operations the political subdivision enacts an ordinance that requires the permit. A political subdivision that requires a quarry operator to obtain a nonmetallic mining licensing permit under this subdivision may not impose a requirement in the nonmetallic mining licensing permit pertaining to any matter regulated by an applicable zoning ordinance or addressed through conditions imposed or agreed toi ina a previously issued and effective conditional use permit. Any requirement imposed in a nonmetallic mining licensing permit shall be related to the purpose of the ordinance requiring the nonmetallic mining licensing permit and shall bel based on substantial evidence. The duration ofa nonmetallic mining licensing permit may not be shorter than 5 years." To the extent the County has an applicable zoning ordinance related to conditional use permits and non-metallic mining, it would appear the Town'sordinance would be preempted by these provisions. 9IPage V. Whether the Committee Decision was Illegal Because it Violated a County Ordinance that Required the Committee to List Reasons fori its Actions, thus there This argument is without merit. While LCC $17.8.30(6) does indicate that the LSC "provide the reasons fori its action," it does not require the LSC to list" its reasons. Furthermore, the ordinance does not indicate how the LSC must "provide" its reasons, and certainly does not mandate that it be in writing or included in the Notice of Action taken. In this matter, the LSC verbally reviewed and considered all of the evidence it received over two separate days of public hearing and, in doing sO, identified the reasons for its decision as it proceeded. The recording of the. June 8, 2023 meeting, which was included as a part of the certiorari record from which the order was issued, demonstrates the LSC listening to both proponents and opponents of the CUP. The LSC asked staff and legal counsel for input and even questioned the Highway Commissioner, who was present, about concerns related to trucks, speed, and County Trunk Highway S. In sorting through the evidence that was offered, weighing it appropriately and considering the standards, the reasons for the LSC decision are clearly discernable and meet the requirements of was No Valid Decision for the Board to Review the ordinance. No similar requirement is found in the statutory provisions. CONCLUSION Forall of the foregoing reasons, the LSC respectfully requests that the Board of Adjustment uphold its decision/action in granting the request of Milestone to modify CUP-96-1075 as provided fori in the. June 12, 2023 Notice of Action. Dated this 16h day of December 2024 LINCOLN COUNTY CORPORATION COUNSEL Attorney for the Land Services Committee 1 By:. Karry A.. Johnson, Stqte Bar No. 1045932 Counsel Gorporation 10IPage