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Town loses sand mine appeal

Court rules in favor of Thiel Pit

By Robert Cloud


A state appeals court upheld a county decision regarding the Thiel Pit in the town of Little Wolf.

For more than three years, the Little Wolf Town Board has challenged the sand mine and asphalt plant before the county Zoning and Planning Committee, the county Board of Adjustment, the county Circuit Court and the state appeals court.

At issue is whether the pit is a legal nonconforming use and if it requires a conditional use permit in order to operate.

In its appeals case, the town contended the Board of Adjustment erred when it ruled the pit was lawful and did not require a conditional use permit.

History
Owned by David and Sally Thiel, the pit has been in operation as a nonmetallic mine since the 1960s.

The Thiels do not operate the pit themselves. They have leased it to both the Waupaca County Highway Department, which has nonexclusive rights to extract sand and gravel, and to American Asphalt, which has mining rights and operates an asphalt plant on the property.

In 2001, Waupaca County adopted a nonmetallic mining ordinance (chapter 43) that requires anyone seeking to engage in nonmetallic mining to have a reclamation permit.

To obtain a reclamation permit, the operators must submit a reclamation plan that details how they will reclaim the land after they finish mining it.

In 2002, the Waupaca County Highway Department submitted a reclamation plan and obtained a permit for its operations in the Thiel Pit.

American Asphalt has not submitted a reclamation plan or obtained a reclamation permit for the Thiel Pit.

In May 2015, Waupaca County adopted a nonmetallic mining ordinance (chapter 38).

Chapter 38 required a conditional use permit for all nonmetallic mines, including exiting mines that expand beyond the boundaries defined in their reclamation plan.

Under the ordinance, a conditional use permit is not required if the nonmetallic mine is nonconforming, meaning it existed before the ordinance was adopted.

In January 2016, the Waupaca County Planning and Zoning Committee determined the Thiel Pit was a legal nonconforming use.

The Little Wolf Town Board appealed the committee’s decision to the Board of Adjustment.

In July 2016, the board ruled in favor of the zoning committee’s decision that the Thiel Pit was a legal nonconforming use when Chapter 38 went into effect and therefore exempt from the ordinance.

The town board then appealed the board’s decision to the circuit court.

On Aug. 7, 2017, Waupaca County Judge Vicki Clussman affirmed the pit had legal nonconforming status and upheld the board’s decision.

On Aug. 15, 2017, the Little Wolf Town Board filed an appeal with the state court of appeals.

Appellate decision
In its appeal, the town argued that both American Asphalt and the Waupaca County Highway Department were operators of the pit and therefore both were required to file a reclamation plan and obtain a reclamation permit.

The town argued that American Asphalt did not file a reclamation plan and the highway department was operating beyond its “temporal, geographic and intended use limitation” in its 2002 reclamation plan.

These violations allegedly made the operations unlawful when the nonmetallic mining ordinance was enacted, the town argued.

“There is no evidence that the use of of the Thiel Pit was unlawful prior to the county’s enactment, in 2001, of the Reclamation Permit Ordinance,” the appeals court wrote in its decision.

“In addition, the Reclamation Permit Ordinance does not prohibit the use of the property as a nonmetallic mine, but instead seeks to regulate what must be done to that property when mining operations have ceased, and any failure to comply with the Reclamation Permit Ordinance can be remedied by submitting an original or amended reclamation plan and by complying with that plan,” the decision said.

The decision also found there was no evidence the pit was a nuisance.

“The town does not point this court to any evidence, other than its general reference to ‘expressed concerns’ of individuals opposed to the pit, that the Thiel Pit in fact is or has been harmful,” according to the decision.

The appellate court also rejected the town’s arguments that the board failed to provide due process by holding a second public hearing and that there was a conflict of interest because the same attorney represented both the county’s highway and zoning departments.

The appellate court noted the Board of Adjustment, whose decision was being appealed, had its own counsel, and the attorney’s potential conflict of interest had no effect on the outcome.

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