By Greg Ambrosius
On Wednesday, Nov. 8, Waupaca County Circuit Court Judge Raymond S. Huber granted a stay to the Waupaca County Planning and Zoning Committee on its reply to the Faulks Bros. appeal of its sand mine permit in the Township of Scandinavia.
The stay allows the Committee to avoid a response to the original appeal that was due on Nov. 22. This likely pushes the next public meeting to late November or more likely to around Monday, Dec. 4.
You may recall that the Waupaca County Planning and Zoning Committee was officially served with an appeal by Faulks Bros. on Oct. 2. They had 20 days to provide a response to the appeal of the denial of the permit, but County Attorney Diane Meulemans made an “agreement” with Faulks Bros. attorney Mitchell R. Olson to refrain from providing a response for 30 days past that 20-day deadline.
Through the Open Records Act, we learned that Meulemans and Olson exchanged emails on Oct. 3, the day after the County was served with the appeal and the same day that the Planning and Zoning Committee met behind closed doors. Director Ryan Brown announced at the end of that closed door meeting that the board would meet again for a “reconsideration” vote on the appeal.
Sure enough, at the Oct. 30 public meeting Cindy Hardy made a motion for a reconsideration vote, which would wipe away the previous vote to deny the permit. There was a long pause for a second to that motion, but DuWayne Federwitz, who is strongly in favor of the sand mine permit, finally seconded it.
The County needed to have this reconsideration vote because of what happened at the Aug. 22 vote. After the 3-2 vote to deny the permit, Chairman Jim Nygaard quickly motioned to end the meeting without getting the reasons for each members’ vote. Legally, the board members must explain why they voted to deny the permit and Faulks Bros. was in the right to appeal the decision. Without an explanation for the denial, the vote likely would have been thrown out by Judge Huber or he might have granted Faulks Bros. the decision.
The duty to ask the board members for their reasons to declare why they voted the way they did likely falls on the Chairman and the County Attorney. As a result, they chose to get a reconsideration vote to start over, thus wiping out the grounds for the appeal. Now if at least one board member changes their vote to approve the permit, the County is off the hook for this appeal, which was seeking damages as well as a new verdict. It’s all a little crazy.
What’s even crazier is that on Monday the County announced that Meulemans has been retained to represent the County in this dispute. She is quoted in the Faulks Bros. appeal as saying “Act 67 has changed the statute to say the zoning board shall approve an application if the conditions currently or will in the future mitigate any concerns, so by not approving the CUP with the 29 conditions attached, this body is not complying with the statute.”
That is not correct. Act 67 says the applicant shall be approved of the permit if they agree to all of the conditions imposed by the board and are in compliance with all County Ordinances. This permit is not in compliance with Chapter 34.14.5.1(b) in multiple instances. She not only gave advice in favor of the permit, but now she’s going to represent the County against the applicant, who she has said she believes is in the right. It’s an interesting decision since Meulemans and Nygaard are the reason that the first vote was thrown out after they didn’t ask for reasons of denial from the three board members. We wouldn’t be at this point if they had just asked the board members for their reasons for voting no on the permit.
We will let you know when the next public meeting is. The Chairman chose to not let the public speak on the agenda items at the last meeting and that will likely be the case at the next meeting. We will let you know when the agenda is posted, but right now we know that the agreement for a delay of the County’s response was a negotiated one between the two lawyers, the Judge has granted an additional stay so that the County doesn’t have to reply to the response again, and we know there will be a new vote on the permit at the next public hearing. We still hold out hope that the three board members who voted to deny this permit before will do so again, but if not the grounds for an appeal are so strong because of the actions of the Chairman and the County Attorney. Stay tuned.