Work continues on the county’s sand mine ordinance.
At a meeting of the Waupaca County Planning and Zoning Committee Thursday, April 23, citizens, attorneys and committee members discussed the latest draft proposal for the county non-metallic mining ordinance.
A key talking point at the meeting was an April 21 letter from Christa Westerberg, a Madison attorney who represents Preserve Waupaca County. Members of the group are currently suing Waupaca County over a decision to grant a permit to open a sand mine in the town of Union.
In her letter, Westerberg argued that the county should not have a special process for granting conditional use permits (CUP) to non-metallic mining operations. She said the permitting process is more lenient for sand mines than it is for other uses.
Westerberg noted that the proposed ordinance (Chapter 38) does not require the zoning committee to consult the affected town or obtain and the town’s recommendation regarding a sand mine, which is required under the county’s general zoning ordinance (Chapter 34) for other conditional use permits.
She said the ordinance does not require sand mines to meet as many review criteria as other applicants for permits.
“The more lenient process is unfair to other CUP applicants who must still follow the process in Chapter 34, and the county will doubtless be approached by other interests requesting a more lenient process for their use,” Westerberg said in her letter. “The process should be the same for all CUPs, which is fairer and simpler for all.”
“I don’t view Chapter 38 as more lenient than Chapter 34,” said Andrew Phillips, a Milwaukee attorney who is assisting the county in revising its sand mine ordinance. “It is very difficult to create a one-size-fits-all ordinance.”
Phillips argued that deciding to permit for a non-metallic mining operation involves more complex conditions for approval than permitting a mobile home on a rural parcel. He said the conditions for a permit may change due to changing circumstance or new information involving the mining operation.
“We’re trying to create some flexibility for this committee to come back and review the conditions,” Phillips said.
However, he also agreed to modify the ordinance to address some of Westerberg’s concerns.
“We never intended to take out the town approval process,” Phillips said. “We’ll make that change.”
Wesserberg, who was at the April 23 meeting, asked the committee to scrap Chapter 38 and just revise the section dealing with non-metallic mining permits to Chapter 34.
“Just enhance what you already got,” Westerberg said.
Phillips said the decision to have a separate zoning ordinance for non-metallic mines “comes down to what’s going to be easier to administer.”
A moratorium on new sand mines has been in effect since September 2013 in order for the county to revise its non-metallic mining regulations. Since then, the moratorium has been extended twice and will expire in May, immediately after the next Waupaca County Board meeting.
Phillips said he and Ryan Brown, the county’s planning and zoning director, will have the revisions done in time for the May 19 county board meeting.
Natural Resources Board approves sand mine study
Geologist Terrance Gerlach asked that the county continue its moratorium on frac sand mining, and revise the draft non-metallic mining ordinance to apply only to new sand and gravel pits.
“A recent citizen petition citing serious concerns about the explosive growth of frac sand mines in Wisconsin has led the state’s Natural Resources Board to unanimously call for a scientific Strategic Analysis of frac sand mining in the state by early 2016,” Gerlach said.
A Strategic Analysis (SA) is a DNR study that examines the environmental, public health and economic impacts of proposed evelopments, such as frac sand mining.
“The information assembled in the SA process can be used by the DNR to revise its frac sand mine regulations, permits and policies,” Gerlach said. “It can also be used by the state legislature and local governments to create more effective and protective frac sand mining laws and ordinances.”
He said the SA will provide accurate information that can be used when determining setbacks, operating hours, truck traffic, blasting vibrations, dust, air quality and public health impacts, property values and environmental impacts.
Noting that there are substantial differences between traditional gravel pits and large sand mines, Gerlach said the county’s proposed non-metallic mining ordinance makes no distinction between the two types of operations.
He asked the county to wait until the DNR conducts its SA before enacting a non-metallic mining ordinance that applies to frac sand mining.
Dayton considers licensing
Jane Haasch, who was recently elected to the Dayton Town Board, believes the proposed county ordinance fails to address concerns regarding the distance of mines from homes, health issues associated with large-scale sand mines and their impact on property values.
At her first town board meeting on April 21, Haasch said the Dayton Plan Commission sub-committee on non-metallic mining needs to meet with an attorney and look for ways “to see what we can protect beyond the county ordinance.”
Haasch is proposing that the town consider a licensing process for sand mines.
She also asked about the town’s authority to regulate sand mines and gravel pits through a licensing process at the April 23 county Planning and Zoning Committee.
In 2012, the Wisconsin Supreme Court ruled that the town of Cooks Valley had the authority to regulate non-metallic mines through a business licensing ordinance. It said the town board had voted more than a decade earlier to give itself village powers and had opted out of the county zoning regulations.
The high court also said that the town’s policing powers were not the same as the land use authority that falls under the jurisdiction of the county zoning.
Chris Klein, Dayton’s former town chairman, sent an email to the county on April 22 in support of the proposed county ordinance.
“Dayton is different from Cooks Valley because we have opted into and agreed to be under Waupaca County zoning,” Klein said. “Because Waupaca County is establishing a new non-metallic zoning ordinance that requires a town recommendation before granting a non-metallic conditional use, a duplicative licensing ordinance does not have the same clear cut authority from the Supreme Court.”