With minimal deliberation and discussion, the Oneida County Board of Adjustment last week upheld the county zoning committee's approval of a conditional use permit (CUP) for a gravel mine in Hazelhurst.
The CUP, approved for County Materials Corporation (CMC), had been challenged by the Lakeland Area Property Owners Association (LAPOA), whose members and supporters showed up in force, wearing red T-shirts emblazoned with "Keep Hazelhurst Beautiful."
The overflow crowd spilled into the hallway.
It was all to no avail. The BOA's attorney, John Houlihan, quickly cautioned participants no new evidence would be considered at the hearing, either from the public or from the parties involved in the case. BOA members already had in hand the record and the evidence in it, based on the zoning committee's own approval of the CUP, he said.
Ultimately, the board did allow limited public comment at the public hearing - for 11 minutes - so long as they promised to stick to the existing record.
While the LAPOA's attorney, Joe Cincotta, emphasized what he said were important points for the board to keep in mind, based on the existing record, BOA members were not persuaded.
The board marched swiftly through the nine standards which must be met for a CUP to be issued, finding all were either met or could be met with the 19 conditions attached by the zoning committee to the permit.
Deliberation on the nine standards took a mere 15 minutes, including a summary of the decisions made on the nine points. What BOA member Ed Hammer called "the thorniest one" - whether the project might substantially impair or diminish the uses, values, and enjoyment of neighboring property - took two-and-a-half minutes to decide.
The decision can be appealed to circuit court. At the outset of the hearing, BOA chairman Harland Lee recused himself, having participated in the town of Hazelhurst's recommendation as a town board supervisor.
LAPOA: Take the law seriously
During his presentation, Cincotta urged the board of adjustment to strictly apply state law and local ordinances.
"Land use issues are important," Cincotta said. "The large crowds and the difficulty of this issue are obvious. In my experience that has led to decisions by local bodies that often create frustration. My point is, it is important from our perspective that we take very seriously the state law and the ordinances, and the language therein, and strictly apply those in reviewing the decision of the planning committee and/or otherwise disposing of this matter at the board of adjustment."
Landowners who apply for conditional use permits have no automatic right to them, Cincotta said, stressing the conditional nature of the process.
"Many decisions I deal with ultimately come down to, 'It's their property, they should be able to do what they want,'" he said. "Fortunately, that's not the case. This is not a permitted use. You have an ordinance. They must meet the ordinance. Conditional use permits are not permitted as a right."
Cincotta said recently enacted Act 67, relating to conditional use permits, has been widely misinterpreted as meaning CUP applications have to be essentially rubber stamped.
"The pertinent language of Act 67 is that you have an ordinance with requirements and the applicant must meet those requirements," he said. "What the state law requires is that the applicant supply substantial evidence that it meets those requirements."
In fact, Cincotta said, CMC did not submit substantial evidence to the zoning committee, which it had to do by law, but the zoning committee did incorrectly require such evidence from the objecting property owners.
"What was clear to me and clear in the minutes is that the planning committee, in looking at the ordinance requirements, shifted the burden of proof, if you will," he said. "They said, basically, 'Well, the objecting people didn't show and they didn't prove that it would harm their property values or the enjoyment of the property. They didn't show that, so we can grant the permit.'"
That was an error of law, Cincotta said. Saying the property owners had not shown those things might sound good on paper, the attorney said, but it changes the ordinance and state law.
"They don't have to prove that the conditional use should not be granted," he said. "The applicant has to prove that it should be granted. Act 67 requires that the applicant provide substantial evidence that they should meet and be granted the permit."
Cincotta focused on two of the standards, though he stressed all nine standards should be thoroughly reviewed. The first was the one requiring the project not substantially impair or diminish the uses, values, and enjoyment of neighboring properties.
"The applicant needed to prove that, with substantial evidence," he said. "This body should be looking at what the applicant put forward, determining whether it is qualified evidence, whether it is substantial, and whether it outweighs other evidence."
In fact, Cincotta said, the record was full of statements from property owners that the expansion of the existing operation - a seven-acre gravel mine that would be operated for years - would indeed impair and diminish the enjoyment and values of their property.
"Statements and testimony by property owners about the value of their property is qualified evidence, according to a 1969 Supreme Court case," he said. "That can be considered, but opinion by CMC that their operation would not negatively affect the enjoyment and value of neighboring property, I would argue that that's not qualified evidence. My review of the record is, the only evidence you have about the effect on the values and enjoyment of neighboring property is from the neighboring property owners."
While CMC had asserted things about the level of noise and truck traffic at the site, Cincotta said he didn't believe that was qualified evidence.
"I say that because I am sure they have tons of evidence that they could provide about their actual detailed operations," he said. "Conclusory opinions about those types of things are not sufficient. Having said that, the assertion that truck traffic will be the same, which we dispute, would not be sufficient to overcome the qualified testimony of the property owners as to the enjoyment and values of the properties."
The second requirement Cincotta focused on was that, in order to have a conditional use, the conditional use must be compatible with the use of adjacent land and with any adopted local plans for the area.
"We believe the planned operation on this parcel fails on both counts," he said. "It is not in any sense of the word compatible with the uses of adjacent land, except their own property to the south. They can't bootstrap this by saying it is compatible with the existing operation."
Moreover, Cincotta continued, it's not consistent with the comprehensive plan of the town that was in effect when the applicant filed for a rezoning to allow the project.
"The narrative of the comprehensive plan is totally contrary to the idea of establishing a gravel mine on this forested property," he said. "In legal parlance, I don't believe there is any rational basis for the planning committee or this body to find that development of a gravel pit on this property would be compatible with adjacent properties or the town's comprehensive plan."
On a legal note, Cincotta said he often see conditions brought forward and then it is argued that, if the project follows those conditions, it will mitigate all the concerns in the ordinance.
"Act 67 requires that applicants satisfy the requirements and conditions of any local ordinance or body," he said. "This is not insignificant. The Legislature's inclusion of the word 'requirements' - those are different from conditions."
The county has a detailed ordinance with nine requirements, Cincotta said.
"Those must be met as a threshold matter by the proposed use," he said. "It should not be 'well, we don't meet those now but if we do these conditions we'll meet them.' The reason being is, then there's no ordinance. Then it's basically what conditions can we impose and then it will satisfy whatever requirements are in the plain language of the ordinance."
But Act 67 was not designed to undermine the plain language of local ordinances, Cincotta said.
"Those are hard requirements to get conditional use permits and they should be enforced strictly," he said.
The county rebuts
The county zoning committee's attorney in the case, Ron Stadler, gave the zoning committee's perspective on the case. In his presentation, Stadler, too, focused on Act 67, but he said Cincotta had misinterpreted the law.
"Act 67 does focus on substantial evidence, and it has to be objective evidence, not subjective evidence," Stadler said. "You've got to able to reach out, hold it, weigh it, and realize what we have in front of us."
Stadler said Cincotta got Act 67 wrong because he maintains that, under Act 67, if someone agrees to meet conditions (conditions attached to the permits), that doesn't mean they can agree to meet requirements (the nine standards, or requirements, that permit applicants must meet under the ordinance, such as the two standards Cincotta expounded upon).
In other words, Cincotta had argued the requirements had to be met as a threshold matter before the consideration of conditions.
"That's just wrong," Stadler said. "That's just an incorrect reading of the statute."
Stadler quoted the statute: "If 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."
"So there is no distinction between requirements and conditions when it comes to this issue of either meets or will meet," he said. "Don't be misled by incorrect readings of the law."
Stadler also said Cincotta confused burden of proof in the scope of a hearing.
"His argument is, if CMC didn't submit the evidence, it can't be considered to be substantial evidence," he said. "It's a little bit of confusion about substantial evidence and burden of proof. The burden of proof is on CMC to show that it either can or will meet the requirements of the ordinance or any conditions. They have to be able to show that. And they have to able to show that by substantial evidence."
But substantial evidence is the weight of all the evidence that comes in, Stadler said.
"CMC doesn't have to be the proponent of the evidence in order for it to be substantial evidence," he said. "It just has to be in the record, regardless of who puts it in the record."
Stadler said such evidence was presented at the public hearing, both by CMC and by other members of the community who testified and offered factual information.
"The planning and zoning committee was bound by law to, and it did as by law, weigh all the evidence," he said.
Stadler then pointed to Cincotta's assertion that CMC had not submitted substantial evidence the project would not substantially impair or diminish the uses, values, and enjoyment of neighboring properties.
While people could testify they thought the project would do just that, Stadler said, the zoning committee had to have objective facts to weigh, not those subjective facts.
CMC did offer testimony loaded with evidence, Stadler said - such as their testimony that they would reduce track traffic. Stadler called that an objective fact, though it should be noted that the LAPOA has disputed that reduced truck traffic will occur.
Stadler also aid there were objective facts about noise, gleaned from decibel readings at their operations.
"There were decibel readings that the noise from their operations would not exceed the traffic noise on Hwy. 51," he said. "There was objective evidence in regard to meeting OSHA's dust and silica standards."
The LAPOA likes to say that the project will reduce their property values, Stadler said.
"Again, though, that is a subjective fact, not an objective fact," he said.
Stadler said property owners could offer qualified testimony about the current values of their property, as Cincotta cited they could do, but he said they were not qualified to offer testimony about the value of their homes in the future because of something that might happen or the operations on another property.
"They are not qualified, as a matter of law, to give testimony about the future value of their homes," he said.
And while there was no objective testimony that the gravel pit would lower property values, there was objective testimony by a property owner next to the Blue Lake pit that his property values had continued to rise year after year.
"That was an objective fact that somebody could offer to the committee and did offer to the committee," he said.
As for incompatibility with the land use plan, Stadler said it was completely compatible with the land-use plan as it exists today and the project was generally compatible with surrounding properties.
"By and large, this gravel pit is compatible with the area," he said. "Completely compatible with the property to the south. And we have to remember that, while the town doesn't want to encourage industrial development along Hwy. 51, this isn't industrial development. It's going to be used as a gravel pit for seven years and when it's done, there will not be an empty big-box store there, there's not going to be an industrial facility there, there's not going to a trucking terminal there. You're going to have a grassy field that will have seedlings planted in it that will grow to be green space again."
In rebuttal, Cincotta said Stadler mischaracterized what he said about case law - what he said was that a CUP was not a right.
"Act 67 didn't change that," he said. "In fact, it confirmed it."
In addition, he called Stadler's position that property owners could testify about current property values but not future values "goofy."
"If nobody can talk about future property values, you guys can't make a decision," he said.
And the straw man was, Cincotta said, one person's testimony that his property values had gone up despite a neighboring gravel pit.
"But that's not the measure," he said. "It's how much would they go up if left alone versus with a new mine for seven years and then a big green hole. Is the trend going to be lower on your property values? Yeah, it's going to be lower, and it's not even close."
Cincotta said he disagreed with the distinction between subjective and objective - he said property owners could testify about their property values and that was objective evidence a court and the board could consider - but he said a study about the impact of gravel pits on property values was also in the record.
Cincotta also said there was a more recent opinion of a real estate professional that the gravel pit would negatively impact property values.
The LAPOA attorney also said he did not misread Act 67 that states that CUPs must be issued if an applicant meets or agrees to meet conditions and requirements.
"My point is that they are different," he said. "Requirements are different from conditions. Requirements are what's in the ordinance in front of you."
The board has to determine if they can meet those requirements, Cincotta said. And the plain language of the law requires that the applicant demonstrates that the requirements can be met, Cincotta said.
As for compatibility, the attorney said the comprehensive plan was not amended before January 2018 and even then only added an industrial "smudge of blue" to the parcel at issue, a change that was not reflected in the narrative of the plan.
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
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