Testimony Before the Buffalo County Board of Adjustment to the Public Hearing Record Regarding the Conditional Use Permit application submitted by R & J Rolling Acres, LLP
January 13, 2012.
by Gary LeMasters
This testimony is in addition to that provided by me at the Public Hearing before the Board of Adjustment on February 2, 2012. Attached to this testimony is the Spring 2011 issue of The Land Use Tracker, published by the UW Extension Center for Land Use Education at the UW-Stevens Point. I will refer to it in my testimony. Thank you for the opportunity to provide my citizen input to this issue.
In am testifying about the Conditional Use Permit (CUP) application dated January 13, 2012, and submitted by R & J Rolling Acres, LLP. Any use of the word “application” without modification refers to this document.
My name is Gary LeMasters. My wife Ruth Ann and I live at W1194 Yaeger Valley Road, a short distance from its intersection with State Highway 88. Ruth Ann has lived here since 1985, and I have lived here since 2005. We love Yaeger Valley and we love Buffalo County. We enjoy sitting on our deck in the evenings, listening to the sandhill cranes in the distance. We enjoy the dark nighttime skies with lots of stars. And we enjoy the quiet at night. I can hear one semi-truck coming up State Highway 88 for at least a minute before I can see the vehicle.
I have great admiration for the difficult task you face under these circumstances. I am sure it is more than you bargained for when you agreed to serve on the Buffalo County Board of Adjustment (BOA). No matter what I may say in the heat of discussion, please keep this in mind.
For the past 24 years I was a public servant for the State of Wisconsin Department of Agriculture, Trade and Consumer Protection. It was a thankless job at times, but I had to remember that I was enforcing rules and regulations that represented the will of all of the citizens of Wisconsin.
You find yourselves in a similar situation. You may know the landowner(s) applying for this Conditional Use Permit (CUP). You may know their relatives. You may know their neighbors. However, you must remember that your decision must consider the Public Interest. Not just the interests of the applicants, or their relatives, or neighbors who want to mine their land, or those who may be employed by the mine. IT IS NOT JUST ABOUT THE MINE! If anybody has told you that you need only consider the mine, they are very wrong and are giving you bad advice.
We live on about 4 acres. Our latest property tax bill is $3517.42. As near as I can tell from the Buffalo County tax records, the applicant paid about $700 I property taxes on the 80 acres he wants to mine.
If the applicant sticks with the original 80 truckloads per day, 5 days a week schedule, and if he is paid $1.00 for every ton of sand hauled from the mine, he will receive $520,000 per year of operation. (80 loads x 25 tons per load x 5 days per week x 52 weeks x $1.00 per ton = $520,000). If he can do 150 trucks per day, 365 days per year, he will receive $1,368,750 per year of operation. These numbers help explain his desire to create jobs by getting this mine approved. I am sure he would still want the permit if he did not create any jobs, just so long as he got the same revenue. So, while jobs are very important, this is not primarily a job creation initiative. It is a get rich quick initiative.
The Board of Adjustment has approved a number of limestone quarries in Buffalo County. There are big differences between these mines and the proposed sand mine. Foremost to me is that the sand mine wants operate every day of the year, and will use the same haul route every day. The impacts are much greater for those who live along the haul route. The truck traffic on State Highway 88, less than 1⁄4 mile from my house, will not go away after a few months, or even a year. If anything, it will increase. The highway cannot handle the additional traffic. And, the county may bear much of the cost of fixing the highway. I doubt that the state has extra money for increased highway maintenance. The constant noise from the trucks as they speed up and down the highway will shatter the peace and quiet we value so much. It will also reduce our property values and discourage us from sinking any more money into the property.
You should deny the R & J Rolling Acres Conditional Use Permit (CUP) application for the following reasons:
- The application was incomplete
- The developer listed on the CUP application dated January 13, 2012 is: Glacier Sands, LLC, 17730 Breconwood Road, Wayzata, MN 55391. I searched the State of Minnesota Secretary of State website at
http://www.sos.state.mn.us/index.aspx?page=790 for this LLC. There is no record of an active or inactive LLC by that name. - The application was first published on January19th, 2012 in Cochrane-Fountain City Recorder and the Mondovi Herald News. The CUP application that was available to the public on this date did not contain the same information presented at the public hearing. The application stated, “There will be 80 trucks/day leaving the site, Monday through Friday.” The mine spokesman at the Public Hearing on February 2, 2012 began by saying that they had to operate the mine and run the trucks 24 hours a day, 365 days a year, with 150 loads every day. He mentioned something about this being necessary to “make it work”. He offered absolutely no concrete evidence to support this statement. I don’t believe the BOA asked for any evidence. You should have either denied the permit out of hand, or limited the testimony to the application. (Wisconsin legal opinions have held that any public hearing must be limited to the information available to the public on the date the hearing was first noticed.) This is not just a technical correction to the application, but a huge increase in the hours of operation and in the truck traffic and attendant noise and safety risks to everybody who lives along and/or travels State Highway 88. I prepared by testimony for the hearing based on the application in my possession. Other members of the public may not have attended the hearing based on the application.
- The application makes no mention of how much water they will be using. This is very important information that citizens are entitled to know.
- The application makes no mention of whatever “polymer” they will use when they wash the sand. The spokesman mentioned this issue at the Public Hearing.
- The application does not contain an accurate map of the proposed buildings and their relationship to the site. They merely drew some lines on an aerial photograph. How can you determine if they really meet all the setbacks if you do not have an accurate map of the proposed site? This information is to be included with the zoning permit, as stated in Section 202, “Application for Zoning Permit. “An application for a Zoning Permit shall be made…and shall include…1. An accurate map of the property, in duplicate and properly dimensioned…”. The lines on the aerial photographs in the CUP application hardly meet this requirement. The BOA is required to consider this information. This is clearly stated in Section 211, of the Buffalo County Zoning Ordinance, entitled “Required Information”. It states, in part, “In order to secure evidence upon which to base its determination, the Board of Adjustment may require, in addition to the information required (for) a Zoning Permit, the submission of plans of buildings…” This means that you are required to consider the information required for a Zoning Permit. The applicant must provide this information along with the CUP application. I reviewed the permit forms used by the Zoning Department. The form for the Zoning Permit does not accurately reflect the requirements in the Zoning Ordinance. The Zoning Permit form is incorrect.
- The purpose of the Buffalo County Zoning Ordinance is to “promote the public health, safety and general welfare…” These are not just words – they are the very foundation of the ordinance! You must consider them in evaluating any CUP application. How does this sand mine contribute to any of these purposes? I am very concerned for the safety of anyone who uses State Highway 88 every day, to commute to work, to move equipment and materials from one farm field to another, to pick up and drop off school children, and so on. My wife had a head-on collision with another car on a corner on this highway a few years ago. The other car lost traction on a snowy night and crossed the centerline. My wife and the other driver survived without serious injuries, but both vehicles were total losses. Had she met a sand truck, she would surely have died. No matter what the applicant and/or his agents say, they will contract the trucking and will have no day to day control over how these trucks are operated. Time is money in trucking, and they will push their speeds at every opportunity. They could easily hit 70 miles per hour on the few straight sections of State Highway 88. Drive on Interstate 94 at the legal speed of 65 miles per hour and tell me how many semi- trucks you pass. Furthermore, there is very little enforcement of the speed limits on State Highway 88. There will be even less if budget cuts at the county level further reduce patrol staff.
- In Section 212 of the Buffalo County Zoning Code, “Standards Applicable to all conditional uses”, Factor 7 says that the Board of Adjustment must consider is “Its relationship (the conditional use – my addition) to the public interest, the purpose and intent of this ordinance and substantial justice to all parties concerned.” I have already discussed the intent of the zoning ordinance. The applicant talks about jobs. Yes, there will be jobs, and that is very important. But, past experience in nearby counties has shown that job creation numbers provided by mines before permits are granted are very optimistic. In any case, most of the money will be spent outside Buffalo County. Where do you buy your groceries? Your durable goods, like appliances? In Buffalo County? AND, there will be reduced revenue to Buffalo County due to reduced property values all along the haul route. These reductions are well documented from experience with other mines. So, I fail to see how the Public Interest is served by this mine. Buffalo County will not see increased tax revenue from the mine. Personal property is not taxed, so the mine equipment will not be taxed. The State of Wisconsin levies the industrial tax on the sand, and it is minimal. It does not come back to Buffalo County. Overall, Buffalo County will loose money on every mine. In your decision, you must consider these factors. They are not just “feel good” phrases.
- What are the plans for this site? I have been told that the developer hopes to use the wash plant and truck loading site to process and ship sand from other mines. There is no mention of this in the application. They want to get the permit, and then expand the operation well beyond the scope of the permit. Yes, they have to get BOA approval for any significant changes in operation, but why would you deny them? After all, they would already have invested lots of money in the site.
- There is considerable uncertainty right now about where the haul route ends. There are lots of rumors about a railroad loading spur being considered on State Highway 35, possibly near the Cochrane-Fountain City School. The people behind this are rumored to be the same people wanting to develop the R & J Rolling Acres site. Approving this mine and the State Highway 88 haul route will open the rest of the valley to mining activity. The pressure will only increase if the railroad spur becomes a reality. People who live on State Highway 88 and those who rely on it every day for safe transportation must be considered in your decision.
- The burden of proof to meet the “Seven Factor” test in Article XXI, Section 212 of the Buffalo County Zoning Ordinance lies with the applicants. There is ample case law in Wisconsin to support this statement. I refer you to the Spring 2011 issue of the Land Use Tracker, published by the University of Wisconsin Extension Center for Land Use Education at the UW-Stevens Point. On Page 8, under the heading Deliberation and Voting it reads as follows: In all zoning board cases, it is well established that applicants have the burden of proof and must provide all necessary evidence to show they satisfy the applicable legal standard. If not, the zoning board has no authority to grant the requested relief.” The Buffalo County Zoning Department should not be preparing the list of conditions. It is up to the applicant to offer conditions that they believe will meet the “Seven Factors” test as well as the overall purpose of the Zoning Ordinance.
Thank you for the opportunity to testify on this matter of the utmost importance to all of us who live along and drive State Highway 88.
Sincerely,
Gary LeMasters
W1194 Yaeger Valley Road
Cochrane, WI 54622
HERE is a PDF of Gary’s full testimony – including an attachment: Roles and Responsibilities of the Zoning Board, from The Land Use Tracker
HERE is a Word version of Gary’s testimony – NOT including the attachment