Yahara Materials is appealing a judge’s decision to pull its permit to operate a quarry in Albion, Wisconsin.
Dane County Circuit Judge John W Markson ruled that some members of the Albion town board showed bias toward the quarry operators and violated the due process rights of the neighbors of the quarry who tried to challenge the permit, reports the Wisconsin State Journal.
The judge ruled that the County Board and its Zoning and Land Regulation Committee did not do enough to remedy those violations during the approval process and questioned whether town and county officials withheld key evidence neighbors of the quarry gave them for review.
“Cumulatively, these errors … render the (County) Board’s final determination arbitrary and capricious,” Markson wrote in his conclusion.
The lawsuit seeking judicial review was filed in October 2014 by Dean Johnson and Signe Gronbeck-Johnson, who are neighbors of the quarry located on Highway 73.
Yahara Materials Inc, the town of Albion, Dane County, the County Board, the Board’s Zoning and Land Regulation Committee and Crazy Acres, Inc, which owns the land where the quarry is located, were listed as respondents.
Yahara Materials is appealing the decision. Yahara wants to run the quarry because of upcoming work planned for Interstate 39-90, which is located less than 2 miles away. Plans called for Yahara Materials to remove about the top 25 feet of stone and then fill the quarry with topsoil before returning it to Crazy Acres as an improved field for crops in about 10 years.
According to Markson’s review that was included in his ruling: The Johnsons’ due process rights were violated when, in December 2013, a letter from Yahara Materials to neighbors of the quarry notifying them of a pending meeting on Jan. 7, 2014, to discuss the permit request failed to include the date. A second letter from Yahara Materials to the neighbors, sent days after the first one was sent out, was not sent by certified mail, as required. The Johnsons and other neighbors claimed they never received it.
A representative from Yahara Materials was the only person other than board members to show up at the January 2014 meeting and the board voted unanimously to approve the permit, which may have created “an impermissibly high risk of bias.”
More examples of possible bias occurred when Dean Johnson attended the March 4, 2014, town board meeting to register a complaint that he and other neighbors had not received timely notice of the January meeting and asked the town board to reconsider its vote. One board member told Johnson that, “I think that decision has already been made.” Later, another board member said, “We’re not changing our mind. Thank you.”
Public opposition to the town board’s decision led the Zoning and Land Regulation Committee to postpone taking action on the permit request at its March 11, 2014, meeting and order the town board to take a more fair and impartial review of the application. But at a special town board meeting on March 24, 2014, attended by 73 residents, public comments were allowed only for “new issues, not stuff that has already been talked about.” Later in the meeting, the board unanimously reapproved the permit.
The permit request went back for the Zoning and Land Regulation Committee and it approved the application with 23 conditions at a May 13, 2014, meeting.
After Dean Johnson and Signe Gronbeck-Johnson filed an appeal to the Dane County Board, it held a hearing in September 2014 and voted 21-16 to overturn the approval of the application. But three-quarters of the board needed to vote to overturn it, so the approval stood.
Markson questioned how much, and which, information provided for the Board to review was actually seen by the Board. He wrote that a county official told him that Dane County Zoning Administrator Roger Lane had exercised some discretion regarding what evidence from the Johnsons he’d include for the Board to review.
Markson also wrote that, at a meeting before the Zoning and Land Regulation Committee, Lane summarized conclusions about prospects for wetland protection in a letter from Yahara’s environmental consultant but didn’t include the entire letter for the record.
Finally, Markson wrote the permit application was incomplete and failed to meet the standards of an A-1 exclusive agricultural zoning district.
“With over half of the County Board voting in favor of the appeal, the dearth of testimony from Yahara, and the overlooked evidentiary and procedural gaps in the record, I cannot conclude that the County Board’s final determination was reasonably based on the substantial evidence in the record,” Markson wrote.