Little Wolf Town Board appeals decision
By Ben Rodgers
The town of Little Wolf decided at a Tuesday, Sept. 5 meeting that it will continue its fight against a gravel pit.
On Aug. 7, Judge Vicki Clussman affirmed in Waupaca County Circuit Court the legal non-conforming status belongs to the pit owners, Dave and Sally Thiel.
The affirmation ended a case which lasted nearly a year, in which the plaintiff alleged numerous violations against Waupaca County and American Asphalt.
“We’re going ahead with the appeal on the legal advice that it should be looked at at the appellate court,” said Jackie Beyer, Little Wolf clerk.
The same arguments and documents brought before Waupaca County Circuit Court will head to the Wisconsin Court of Appeals District IV in Madison.
“It will be based upon the record, so it will be virtually the same record that was in front of the circuit court judge,” said Hans Thompson, attorney for the town of Little Wolf. “But there will be additional opportunities to argue the legal merits of the case. So there won’t be additional evidence. The record is what it is.”
On July 27, 2016 the Waupaca County Board of Adjustment denied an appeal from the town of Little Wolf.
That appeal was in regards to the Waupaca County Planning and Zoning granting the mining operation in the pit legal non-conforming status on Jan. 7, 2016.
Essentially pit operations are considered legal-non-conforming because it was legally established, but does not conform to current zoning laws as it was created before those laws existed in Waupaca County.
The legal non-conforming status allows American Asphalt to operate without a conditional use permit.
“Going back to the issue of having them go through the conditional use permit process, the important thing is, I think everybody wants or deserves in this case, is for the ability of the public and frankly local government to have input for the operations of the pit and how those operations impact local residents,” Thompson said. “Because right now American Asphalt and by extension the county, believes that they can do anything they want in the pit with impunity and because they are legal non-conforming nobody can stop them.”
He said he is hopeful this case will be resolved in less than a year.
If Clussman’s affirmation is reversed the company would have to apply for the permit, which involves considerable public input.
“To us it’s important to have the opportunity for residents and local government to weigh in on the operations in the pit in order to ensure the safety of local residents, the quality of life for local residents and maintaining the public good,” Thompson said.
This is the second Board of Adjustment decision that will go to the court of appeals in the past three years, according to Diane Meulemans, Waupaca County corporate counsel.
“They’re just exercising their right to have their decision reviewed by a higher court, which is a remedy available for them,” Meulemans said.
The entry of judgement from the circuit court case was filed on Aug. 24. Little Wolf will have until Oct. 8 to file paperwork with the court of appeals.
American Asphalt Vice President Tom Burch and Sally Thiel, pit co-owner, declined comment until those papers are formally filed.