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One year in court

Judge determining sand pit’s future

By Ben Rodgers

The legal battle over the Thiel Pit began on Aug. 26, 2016, when a summons and complaint were filed in Waupaca County Circuit Court.

On Aug. 7, 2017 a verdict was reached.

The first document named the town of Little Wolf as the plaintiff, Waupaca County and the county Board of Adjustment as defendants with American Asphalt, and David and Sally Thiel as intervenors.

“The BOA’s decision is based on one or more incorrect theories of law; given the evidence properly submitted the BOA could not reasonably find the operators were exempt from the non-metallic mining ordinance,” the compliant said.

The same document requests for a declaration by the court that the operators of the Thiel Pit, the highway department and American Asphalt, are subject to the provisions of the ordinance and are required to apply for a conditional use permit.

Because of its legal non-conforming status, American Asphalt does not need a conditional use permit, which it currently does not have.

Depending on the outcome of this civil suit that status could change, requiring the company to apply for a conditional use permit, which involves considerable public input.

A month later on Sept. 26, 2016, the defense answered the complaint:

“There is no legal or factual basis for overturning the Board’s decision. Specifically the decision of the board; (a) was within its jurisdiction; (2) was based on a correct theory of law; (3) reflected its judgement and (4) was reasonably made based on evidence presented at the hearing.”

On Oct. 3, 2016. Dave and Sally Thiel and American Asphalt were allowed to intervene as defendants in the case.

On March 31, 2017, the plaintiff requested a change of venue, wanting to move the trial outside of Waupaca County.

“This case pits a small township and its residents against the machinery of county government. Thus far the Town’s interests have been trampled in unjust fashion. To put it succinctly, there is the appearance thus far, with considerable foundation that the Town cannot prevail in Waupaca County in its battle against Waupaca County.”

The defense countered on April 13, 2017, with the argument that the court is an agent of the state, not the county.

“(The) Plaintiff’s perceived injustice at the hands of Waupaca County reflects in no way on the justice available to it before the court.”

Circuit Court Judge Vicki Clussman denied the motion for a change of venue based on the defense’s argument on May 16, 2017.

The verdict was reached on Aug. 7, 2018, almost a year after it began.

Reclamation permit
Reclamation plans address such issues as protecting topsoil from erosion and groundwater from contamination after the pit is closed. This include slopes, drainage, hydrology and different types of vegetation.

“That’s where we say they are not in compliance, because there are arguably two operators in the Theil Pit, one being American Asphalt and the other being the county, and frankly the county’s role is questionable at this point, it’s basically only American Asphalt,” said Hans Thompson, attorney for Little Wolf. “The law says operators in the pit need to have a reclamation plan and reclamation permit and American Asphalt has neither.”

American Asphalt did file a reclamation plan which was written on behalf of the Waupaca County Highway Department. That was approved on Jan. 30 by East Central Wisconsin Planning Commission, which administrates these types of ordinances in Winnebago, Waupaca, Outagamie and Shawano counties. ECWPC has no enforcement duties.

However, as of July 20, 2017, American Asphalt was still operating under the reclamation plan and permit of Waupaca County.

The transfer of the permits is still pending.

In regards to Waupaca County’s reclamation plan for the pit, opponents question the amount of work the county actually does there.

In an affidavit by Lance Penny, field operations manager and deputy highway commissioner for the Waupaca County Highway Department, dated July 7, 2016, Penny states the county has used the pit.

“Since 1979 or 1980, to the present date (July 7, 2016), the Thiel Pit has been utilized continuously by the County for non-metallic mining operations including mining, crushing, and production of hot mix,” the affidavit reads.

The town of Little Wolf is arguing the county has not done any work in the pit since 2009.

Currently, the county purchases asphalt from American Asphalt and sand from Mathy Construction Co., according to County Highway Commissioner Casey Beyersdorf.

This is important because the Waupaca County Non-Metallic Mining Ordinance requires all operators to have a reclamation permit, as well as a conditional use permit.

American Asphalt currently operates under the county’s reclamation permit for the pit, which is allowed because American Asphalt provides financial assurance, according to Scott Konkle, reclamation specialist with the East Central Wisconsin Regional Planning Commission (ECWRPC).

Say Thiel Pit closed. The financial assurance provided by American Asphalt would pay for the costs to have the pit reclaimed per the guidelines in the reclamation plan.

ECWRPC received a reclamation surety bond with Milestone Materials as principal on May 24, 2017, for $297,725 or $5,395 an acre for 55 acres.

This bond covers the cost for the pit’s reclamation for operations that were conducted by the Waupaca County Highway Department, and would otherwise by the responsibility of the taxpayers to cover.

Milestone Materials is a Division of Mathy Construction Co., of which American Asphalt is a division.

“They do have the reclamation plan,” Konkle said. “That’s been approved. The reclamation permit is still underneath the county at this point, so they are the permit holders. But they are in compliance because financial assurance is being provided with the site.”

The Wisconsin Department of Natural Resources also requires a reclamation permit in Chapter NR 135.

“Any person who violates this chapter or an order issued under sub. (1) or (3) may be required by the regulatory authority to forfeit not less than $25 nor more than $1,000 for each violation. Each day of continued violation is a separate offense,” the document reads.

Residents by the plant said it has been in violation for about three years, which if assessed at the highest penalty would result in a fine of more than $1 million.

Konkle said the DNR does not have the resources to enforce fines and is more focused on making sure the guidelines are followed.

“It’s not like you’re going to throw the book at them,” Konkle said. “Usually people comply when they get a compliance letter.

“It could go to a point if somebody wasn’t complying where the DNR would take over your program but they don’t want to do that,” he said. “They don’t have the staffing for that. In most cases things just work out. At this site they are working out. It took some time.”

Zoning violations
Zoning of the pit is another issue that can’t be decided until after the suit is ruled on.

In the town of Little Wolf the actual asphalt operation is on land zoned for agricultural enterprise.

That zoning would normally require a conditional use permit, but not in this case because of the legal non-conforming status, according to Ryan Brown, Waupaca County’s planning and zoning director. The American Asphalt plant is also over the boundaries set in the reclamation plan.

Brown confirmed this in an email to Jackie Beyer, Little Wolf town clerk, on June 23, 2015.

Konkle confirmed the same in a July 2, 2015 email to Dave Abrahamson, a landowner in the area.

According to Tom Burch, vice president of American Asphalt, Waupaca County was beyond its reclamation plan back around 2007-08, when mining operations exceeded the reclamation permit.

“The only time I am aware that the NR 135 maps needed to be updated was around 2007 when the county mined on the neighbor’s property and ECWRPC made the county update the plan,” Burch said.

Therefore, the original 2002 reclamation plan could have been redone much earlier than any alleged 2015 violations, he said.

Burch who oversees seven mines like this, said reclamation plans are often updated annually to include any changes in mineable areas.

Residents in Little Wolf expressed their disdain for the county and its role in this complex situation.

“With Waupaca County being the enforcement agency, and also the operator of the mine, it’s obvious why Waupaca County has turned a blind eye to these violations,” says a letter to the Waupaca County Board and signed by 34 area residents. “How is it that a private for profit company (American Asphalt) has been allowed to mine material to the point of violating the reclamation plan, face no consequences for those violations, and Waupaca County taxpayers are then left financially responsible for it?”

Only one supervisor Dave Neumann responded to the letter sent certified mail on Oct. 18, 2016.

Clussman made three affirmations on Monday, Aug. 7 in this case. The first was a ruling that the legal non-conforming status belongs with the landowners.

The second was that there was no evidence of any enforcement related to a nuisance in Thiel Pit.

The final affirmation was that Andrew Phillips, attorney representing Waupaca County had no conflict of interest.

All three were in favor of the defense.

All that’s left now is a signature on the judicial orders.

“We had two arguments: One that they are proceeding on an incorrect theory of law in that they didn’t understand the intricacies of a non-conforming use and a need to be legally non conforming at the time of the adoption of the ordnance,” Thompson said after the verdict. “We believe the case law is pretty clear that if you’re not legally operating that you can’t claim legally non-conforming protection. Additionally we disagree with the judge that a landowner is not held responsible for the actions of a leaseholder.”

The evidence of enforcement also troubled the plaintiff, he said.

“It’s extremely frustrating because the country is the one that’s supposed to responsible for enforcing reclamation plan ordinances, and they have come right out and said they don’t have any interest in enforcing it against themselves,” Thompson said. “Why would they fine themselves?”

With a signed order this case is effectively closed. But Little Wolf could keep fighting.

“We can appeal it, and we may,” Thompson said.

Editor’s note: This is the second and final story in a series on the Thiel Pit.

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