By Greg Ambrosius
The next step in the appeal process of the Iola Car Show sand mine permit has been established: It’s now onto the Waupaca County Board of Adjustment.
In a surprise announcement on Wednesday, June 19, Outagamie County Judge Vincent Biskupic granted the Motion to Dismiss the appeal in Circuit Court to the Waupaca County Planning and Zoning Committee. The judge had scheduled a June 28 hearing between the two parties to decide where the appeal would be heard next, but he surprisingly made the decision just from the briefs submitted by both sides. He has ordered a new hearing in front of the Board of Adjustment (BOA) with new testimony at a date and time to be determined.
The appeal from three Scandinavia families was filed in Circuit Court and to the Board of Adjustment on Feb. 19 and the Motion to Dismiss was filed by the County shortly after that, contending that Waupaca County Ordinances stated that the appeal had to be heard at the Board of Adjustment first. There was concern from the plaintiffs that the Board of Adjustment would not hear new testimony, but the judge said that would not be the case, thus allowing this next step to stay in Waupaca County.
“Just as Petitioners argue, the court in Osterhues recognized that due process requires a board to allow a party appealing a decision on a permit application to present evidence,” Judge Biskupic wrote. “Thus, the Board would be required under Wisconsin law to conduct a de novo review and allow the Petitioners to present their evidence. Respondents represent that Petitioners will be granted that opportunity before the Board.”
After the BOA hears this case and rules, the judge stated that both parties could still return to the Circuit Court for a judgment. The decision and judgment from the BOA would provide even more facts that the Circuit Court could then use in a decision, Biskupic said.
“If Petitioners succeed on appeal to the Board of Adjustment, there would be no need for certiorari review. If Petitioners are denied relief, they can seek certiorari review at that time. In addition, if certiorari review is necessary in the future, the proceedings before the Board of Adjustment should clarify necessary claims and parties,” he wrote.
The two parties will now work on a date and time for this hearing before the Waupaca County Board of Adjustment. The permit to Faulks Bros. for the sand mine on the Iola Car Show grounds in the Township of Scandinavia was denied by the Waupaca County Planning and Zoning Committee on a 3-2 vote on Aug. 22, 2023, but after two closed-door meetings with the five board members a reconsideration vote was passed in October of 2023. With no new evidence to consider, the Planning and Zoning Committee then voted 4-1 in favor of the permit in January of 2024, leading to this current appeal.
We’ll post more details on the next step once we have a date and time for the hearing. That BOA hearing will be open to the public and public comments will most likely be allowed. Stay tuned.