The Waupaca County Board of Adjustment denied the appeal challenging the
Zoning Committee’s decision to grant a conditional use permit (CUP) to
AF Gelhar to open a sand mine.
In the written decision, the board said it limited its review to whether
the Zoning Committee made any errors in its proceedings.
The board reviewed arguments that opponents to the mine had made, both in briefs and at the May 15 hearing.
The petitioners had argued that AF Gelhar’s original CUP application was
incomplete because it failed to provide adequate descriptions of the
locations of the structures, type of construction and a map of the site.
The board said county ordinances require the applicant to complete the
application form and submit it to the planning and zoning director, who
then refers it to the committee.
“Here, the planning and zoning director, Ryan Brown, testified that the
application was complete,” board said. “The application itself attached a
reclamation plan that listed the location of two types of structures,
i.e., wash and drying plants, the topography both before and after
mining and other detailed information about the planned use.”
The board determined that the original application was not incomplete.
“The public opposition to the CUP and as expressed in this appeal was
whether mining should be allowed, not as to the location or type of
construction of any buildings,” the board said.
Opponents had also argued that the application had not been made by the
landowner or with consent and therefore violated the county ordinance.
The board noted that Roger Henschel testified that he had consented to
AF Gelhar’s application and that there was a contract to sell the
property contingent on the permit being granted.
“In fact, it was well known that the AF Gelhar application concerned the
‘Gerald A. and Susan M. Tellock and Roger E. and Geraldine Henschel’
property as it was specifically listed as such in the public notice for
the CUP hearing,” the board said.
The appeals petition had also claimed that the Zoning Committee’s
decision was “arbitrary, capricious, oppressive and unreasonable, and
lacked a basis in law.”
The board observed that the petitioners did not introduce any evidence
indicating how the committee’s decision was arbitrary, capricious or
“There were facts and arguments introduced which would support granting
the CUP and there were facts and arguments introduced which would
support denying the CUP,” the board said. “In fact, three members of the
committee were persuaded to vote in favor of the CUP and two members
were persuaded to vote to deny the CUP.”
None of the testimony regarding Waupaca Foundry was discussed by the board in its eight-page written decision.