WI Appeals Court Affirms Approval of Buffalo County Frac Sand Mining

Wisconsin case law summary by Attorney Richard Clem: zoning, frac sand mining.

Mike O'Connor v. Buffalo County Board of Adjustment. WI zoning, frac sand mining

R&J Rolling Acres, LLP owned property in Buffalo County, Wisconsin on which it wanted to operate a "frac sand" mine to mine sand for the petroleum industry. The company applied for a conditional use permit from the Buffalo County Board of Adjustment, which was ultimately granted.

According to the permit application, approximately 126 trucks per day would be hauling sand from the mine, and would transport it along state highways 35 and 88. There was objection based upon the traffic impact on highway 88. However, the Board obtained a report from the state Department of Transportation indicating that the highway was safe, and that there would be minimal safety impact from the traffic. Various conditions were imposed on the permit, one of those being a limitation on the number of trucks. Truck loads leaving the site were limited to 105 per day, and hauling was prohibited on weekends and holidays.

Mike O'Connor, one of the citizens who opposed the application, and the School District of Cochrane-Fountain City both sought certiorari review in Buffalo County Circuit Court. Judge Joseph D. Boles affirmed the board's ruling, and O'Connor appealed to the Wisconsin Court of Appeals.

The appellate court first noted that the administrative determination had a presumption of correctness, and O'Connor bore the burden of overcoming that presumption. O'Connor argued that the board's decision was in error because the land was zoned for agricultural use, and the frac sand mining was not permitted in an agricultural district. He also argued that the borad shouldn't have granted the permit without knowing the identity of R&J's owners.

On the first argument, the court looked at the zoning ordinance, which specified that it was a permissible use for agricultural to engage in "extraction of sand and gravel and the quarrying of limestone and other rock for aggregate purposes." O'Connor argued that the sand wasn't being used "for aggregate purposes," and the use was, therefore, not permitted. But the board had taken the position that the words "for aggregate purposes" modified only "quarrying of limestone," and that this restriction did not apply to "extraction of sand and gravel." The court noted that either interpretation was reasonable, and that the board acted within its powers in chosing one of those reasonable interpretations.

The court also disagreed with O'Connor's challenge that the permit had been previously denied, and should not have been granted when presented a second time. The court held that the doctrine of claim preclusion did not apply to zoning applications.

As to the identities of the owners, there had been no evidence that O'Connor raised this objection before the board. In addition, there was no legal authority requiring these identities to be known before granting the permit.

No. 2013AP2097 (Wis. Ct. App. April 22, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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