By Greg Ambrosius

On Friday (May 10) afternoon, Outagamie County Judge Vincent Biskupic was supposed to hear the Motion to Dismiss argument from Waupaca County lawyers concerning the Faulks Bros. sand mine permit.

But that hearing was delayed on Tuesday (May 14) because Judge Biskupic is involved in another trial. The Motion to Dismiss hearing has now been pushed back until Friday, June 28, at 8:45 a.m.

Both sides have already submitted their responses to the judge. The plaintiffs argue that going to the Waupaca County Board of Adjustment (BOA) would be futile because of guidelines already in place for the BOA; thus, this appeal should go directly to the Circuit Court.

“While it is true that Plaintiffs filed an appeal of the CUP with the Board, the remedies available under the County’s Zoning Ordinance are not adequate for the relief Plaintiffs seek, and at least two well-documented exceptions to the exhaustion doctrine apply,” Christa Westerberg of Pines Bach LLC stated in her response. “First, recourse to the Board would be a futile or useless act, as demonstrated by the Board’s policies and comments in recent meetings. Second, several questions of law – including substantial constitutional questions — are involved in which the Board’s expertise is not an important factor, including whether the Committee violated Plaintiffs’ due process rights throughout the hearing process. The Court should determine that the doctrine of administrative exhaustion does not apply here and deny Defendants’ motion to dismiss.”

Stadler Sacks LLC represents Waupaca County and they responded colorfully: “Plaintiffs present a red-herring, arguing that this matter should proceed due to a conversation Ryan Brown had with the BOA at its February 22, 2024 meeting regarding the BOA’s policies “causing confusion.” Plaintiffs take the discussion completely out of context. The discussion revolved around potential changes to the BOA’s policies and procedures and whether the BOA would recommend a change to the Ordinance governing appeals of CUPs. As the County Ordinance stands, the BOA hears administrative appeals of grants or denials of CUPs and Plaintiff’s appeal has already been accepted for review.”

The argument in front of Judge Biskupic will have to wait another six weeks with a decision on the appeal even much further off than that. Stay tuned.