Board upholds sand mine permit

The Waupaca County Board of Adjustments voted Oct. 25 to uphold the decision made by the Waupaca County Planning and Zoning Committee to permit a sand mine on the Iola Car Show grounds.

The decision was to allow a conditional use permit (CUP) for the sand mine, which will be operated by Faulks Bros. Construction.

The town of Scandinavia Plan Commission recommended denying the permit on May 3, 2023. Then the Scandinavia Town Board also recommended denying the CUP.

The Waupaca County Planning and Zoning Committee for a public hearing in July 2023 with a vote taken in August to deny the CUP request.

Eventually the Waupaca County Planning and Zoning Committee voted to allow the CUP for the proposed mine in January 2024 upon agreeing to conditions. Board member and county Supervisor Joe McClone cast the single dissenting vote.

After this decision was made, neighbors to the proposed mine hired an attorney from Pines Bach Law firm out of Madison, Christa Westerberg, to represent them in the appeal.

The public hearing took place Oct. 21 where the Board of Adjustment heard 10 1/2 hours of testimony from both sides.

The Board of Adjustments were given all the transcripts of every meeting held, as well as documents, letters and evidence from each side, and a tour of the parcel prior to the hearing.

The sand mine will only have 10 acres open and processed at any given time, Faulks Brothers will have eight years to extract the sand, with an option to extend a further three years should it be needed.

The main concerns that were addressed repeatedly throughout the meeting were the affects to groundwater and wells, land value and whether or not the application was properly filled out.

Groundwater and wells

Groundwater and well contamination came up during testimony, with the appellants stating that their wells are too close to the proposed site.

The Iola Car Show and Faulks Bros. hired Mark Krumenacher, a geologist and geophysicist, who has been studying groundwater for about 40 years.

Krumenacher said that groundwater flow generally mimics surface topography, so the water is always flowing to discharge into a surface water source.

“If on average we get 42 inches of rain in this area, about 7 inches of that ultimately soaks into the ground, becoming groundwater,” Krumenacher said.

As part of the conditions of the CUP that was agreed on by Faulks Bros. is that the mining does not go below the water table, Krumenacher said, nor will there be a well located on site.

Faulks said the mine will on average be about 26 feet deep. However Westerberg said the water table in the area can be anywhere from 20 to 50 feet below ground level, which leads her to believe that there is some overlap in numbers.

During deliberations the Board of Adjustments agreed that the mine will not have an effect on groundwater, as well as not have an effect on erosion, wetlands, floodplains or water bodies.

Land values

There were also conflicting views on o whether or not the land value is affected with the adjacent open mine.

The car show and Faulks Bros. side brought up Scott MacWilliams, a property appraiser.

MacWilliams along with Krumenacher both went over property value effects of mines in the Midwest.

MacWilliams said that to get property value that is in close proximity to mine, you will need to compare it to similar property not close to a sand mine, citing that the true evidence is in the sales numbers.

Krumenacher also said that the report submitted by the appellants appraiser was inaccurate and that including an opinion survey was inappropriate.

“I am a scientist and I question everything, I look at everything that is stated, is that a fact? Or is that an opinion?” Krumenacher said.

He noted that in the Midwest there are about 10,000 mines, and if there is such a substantial loss in property value why wouldn’t that information be public knowledge.

Kurt Kielisch, the appraiser representing the appellants, addressed the claims that his report was not accurate. He said that the opinion aspect of the accusation was from realtors in the area.

Kielisch said he created a survey he sent out to realtors in Marquette County where a mine was proposed, 189 returned the survey and he found that property abutting or 1,000 feet away from the sand mine can see up to a 15% decrease in property value.

In a different study Kielisch found that the properties of Ambrosius, Scott and Mentzel could see a 23% to 25% decrease in value.

During deliberations Art Richardson, board member, said he was confused as to how land value does not decrease when the house is in a close vicinity of a sand mine.

The city attorney explained that its not whether it diminishes a property value, but substantially diminishes a property value, and that is how the board would need to approach this concern.

Bill Abba, a board member, said he agreed with the assessment of property value provided by Faulks Bros.
Penny Leder, a board member, also agreed that the property values would not substantially decrease, citing that the project was small and has a short duration.

Application

An assertion that the CUP application was not complete upon submitting it was another claim the appellants made in the appeal.

The appellants argued that the application was not complete due to the following issues: a map highlighting proposed features of the mine site was not submitted, dates were not clearly stated, there is not an estimated water budget, a plan for hazardous materials, a plan for accidental spills, a plan to control noise, dust or vibrations, and lastly, it did not detail mining methods.

During the appellants testimony they also asserted the parcel in question is zoned farmland preservation.
Westerberg said farmland preservation is a designation under the state law to preserve farmland in open spaces and often provides tax credits for preservation.

There are six criteria that must be met, including protecting the integrity of the property and the mine needing to be reasonable and appropriate.

She argued that there are many options for locations to create a sand mine in Waupaca County that will not affect residences. Mark Sweeney, the lawyer representing the Iola Car Show and Faulks Brothers, said mines have to go where the sand and gravel is.

Sweeney said a mine operation cannot be located to an industrial park or somewhere more convenient, the mine is created in the site where sand and gravel is found.

During deliberations Abba said he disagreed with Westerberg’s assessment of the application, listing examples such as the claim there isn’t a plan for lighting, but the operation will not proceed at night.

Abba also said Faulks Bros. addressed all of the claims the appellants listed, including fuel storage, blasting and water consumption.

Moving forward

Greg Ambrosius, a neighbor listed in the appeal, said he and his fellow neighbors were disappointed with the result of the hearing.

“Today the board sent a clear message to all of Waupaca County. Faulks Bros and other pit operators are allowed to mine wherever sand and gravel is located in Waupaca County. It doesn’t matter if it reduces property values, which they admitted it will. It doesn’t matter if it’s not in compliance with the Township’s Comprehensive Plan, which the Faulks’ lawyer clearly admitted is the case,” Ambrosius said. “And it doesn’t matter if the township says the mine is not in the best interests of their goals, objectives and development plans. If there’s sand or gravel there, it’s open for business no matter how much the community and its local government objects to it.”

Ambrosius also touched on when Sweeney said the town of Scandinavia Comprehensive Plan was outdated during testimony and therefore does not come into play in terms of making a decision in this matter.

“When Mark Sweeney, Faulks Bros attorney, admitted that they weren’t in compliance with the Township’s Comprehensive Plan, that should have been game over,” Ambrosius said. “But the board bought the argument that the plan hadn’t been updated since 2007 and was outdated, even though it’s the township’s plan for CUPs and future development through 2030. Because they bent the law to appease this requirement, Comprehensive plans are now useless in the state.”

Ambrosius said they have 30 days from the next Board of Adjustment meeting to file their appeal to the ruling.

Ambrosius said he and his neighbors will be speaking with Westerberg on what to do next.

Jon Faulks, of Faulks Brothers, gave the following statement.

“The [Board of Adjustment’s] lengthy and thoughtful deliberations and vote to grant a Conditional Use Permit to Faulks and the Iola Old Car Show, reaffirming the vote of the County Planning and Zoning Committee, demonstrated that the decision was based on adherence to the law, free from subjective opinions,” Faulks said. “Viewing the Comprehensive Plan as law is a misconception. As clarified by the state: Enacting a comprehensive plan through an ordinance does not, on its own, make it a regulation. The PVRF’s preferred land use includes provisions for mining, and this sand pit project will allow the land to be restored to its original use for parking and agriculture upon completion”

The Iola Car Show declined to comment.