                                                              2017 WI 52

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2015AP491
COMPLETE TITLE:         AllEnergy Corporation and AllEnergy Silica,
                        Arcadia, LLC,
                                   Petitioners-Appellants-Petitioners,
                             v.
                        Trempealeau County Environment & Land Use
                        Committee,
                                   Respondent-Respondent.
                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                             Reported at 370 Wis. 2d 261, 881 N.W.2d 358
                                         (2016 - Unpublished)

OPINION FILED:          May 31, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 11, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Trempealeau
   JUDGE:               Elliott M. Levine

JUSTICES:
   CONCURRED:           ZIEGLER, J. concurs, joined by ROGGENSACK, C.J.
                        (opinion filed)
  DISSENTED:            KELLY, J. dissents, joined by GABLEMAN, J. and
                        R.G. BRADLEY, J.
  NOT PARTICIPATING:


ATTORNEYS:
       For        the   petitioners-appellants-petitioners,       there    were
briefs filed by Gary A. Van Cleve and Larkin, Hoffman, Daly and
Lindgren Ltd., Minneapolis, and oral argument by Gary A. Van
Cleve.


       For the respondent-respondent, there was a brief filed by
Ronald S. Stadler, Aaron J. Graf and Mallery & Zimmerman, S.C.,
Milwaukee, and oral argument by Ronald Stadler.


       An amici curiae brief was filed on behalf of CSI Sands
(Wisconsin)         LTD.,    D/B/A   Canadian   Silica   Industries,   Superior
Silica Sands LLC, Mississippi Sand LLC, and High Country Sand
LLC by Anders B. Helquist and Weld Riley, S.C., Eau Claire.


    An amici curiae brief was filed on behalf of Wisconsin
Counties Association and Wisconsin Towns Association by Richard
Manthe, Shawano.


    An amici curiae brief was filed on behalf of Wisconsin
Realtors   Association   and   Wisconsin   Builders   Association   by
Thomas D. Larson, Madison.




                                  2
                                                                     2017 WI 52
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.       2015AP491
(L.C. No.    2013CV245)

STATE OF WISCONSIN                         :            IN SUPREME COURT

AllEnergy Corporation and AllEnergy Silica,
Arcadia, LLC,

              Petitioners-Appellants-Petitioners,
                                                                  FILED
      v.
                                                             MAY 31, 2017
Trempealeau County Environment & Land Use
Committee,                                                      Diane M. Fremgen
                                                             Clerk of Supreme Court
              Respondent-Respondent.




      Review of a decision of the Court of Appeals.             Affirmed.


      ¶1      SHIRLEY S. ABRAHAMSON, J.1       This is a review of an

unpublished decision of the court of appeals affirming an order

      1
       Although four justices agree with the mandate of this
opinion that the decision of the court of appeals is affirmed,
only Justice Ann Walsh Bradley joins this opinion (which makes
it the opinion of two justices).      Justice Annette K. Ziegler
(joined by Chief Justice Patience D. Roggensack) joins the
mandate and writes separately in concurrence.     Justice Daniel
Kelly (joined by Justice Michael J. Gableman and Justice Rebecca
Grassl Bradley) dissents.      This opinion is a lead opinion
because four justices do not agree with or join its reasoning.

                                                                   (continued)
                                                                        No.    2015AP491



of the circuit court for Trempealeau County, La Crosse County

Circuit Court Judge Elliott M. Levine, presiding.2                      The order of

the circuit court affirmed the Trempealeau County Environment &

Land       Use   Committee's      denial    of    the     conditional    use    permit

application         for     non-metallic        mineral     mining   submitted        by

AllEnergy         Corporation      and     AllEnergy       Silica,   Arcadia,       LLC

(collectively AllEnergy).                The non-metallic mineral mining in

the instant case is mining, processing and transporting silica

sand used in hydraulic fracturing (fracking).

       ¶2        Naming the Trempealeau County Environment & Land Use

Committee as respondent, AllEnergy sought certiorari review in

the    circuit      court    of   the    denial    of     its   application     for   a

conditional use permit; appealed the order of the circuit court




     As Justice Ann Walsh Bradley recently explained in State v.
Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887 N.W.2d 554 (Ann
Walsh Bradley, J., dissenting), although "the term 'lead'
opinion . . . is undefined in our Internal Operating Procedures,
its use here is consistent with past description. We have said
'that a lead opinion is one that states (and agrees with) the
mandate of a majority of the justices, but represents the
reasoning of less than a majority of the participating
justices.'" (quoting State v. Lynch, 2016 WI 66, ¶143, 371
Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann Walsh Bradley, JJ.,
concurring in part and dissenting in part) (citing Hoffer
Props.,   LLC  v.   DOT,  2016  WI   5,  366   Wis. 2d 372,  874
N.W.2d 533)).
       2
       AllEnergy Corp. v. Trempealeau County Env't & Land Use
Comm., No. 2015AP491, unpublished slip op. (Wis. Ct. App. May
10, 2016).


                                            2
                                                             No.    2015AP491



to the court of appeals; and then sought review of the decision

of the court of appeals in this court.3

     ¶3     The   issues    presented     in   AllEnergy's       brief    and

addressed   by    the   Trempealeau   County   Environment   &     Land   Use

Committee's brief are the following:

     I.     Did the Trempealeau County Environment & Land Use
            Committee, an appointed body without the power to
            legislate, exceed its jurisdiction by denying a
            conditional use permit based on broad legislative
            concerns over the public health, safety, and
            welfare?

     II.    Did substantial evidence in the administrative
            record support the denial of a conditional use
            permit for non-metallic mining?

     III. Should the court adopt a new doctrine that a
          conditional use permit applicant is entitled to
          the permit where (A) all ordinance conditions and
          standards are met and (B) additional conditions
          can be adopted that address potentially-adverse
          impacts from the use?4
     3
       Briefs were submitted in this court by amici curiae as
follows: Joint brief of CSI Sands (Wisconsin) LTD., D/B/A
Canadian   Silica   Industries,  Superior   Silica   Sands   LLC,
Mississippi Sand LLC, and High Country Sand LLC; Wisconsin
Realtors Association and Wisconsin Builders Association; and
Wisconsin Counties Association and Wisconsin Towns Association.
     4
       Brief of Petitioners-Appellants-Petitioners (AllEnergy) at
vi (emphasis added).

     AllEnergy's petition for review stated the issues somewhat
differently as follows (emphasis added):

     I.     Does a conditional use permit ("CUP") applicant
            have a property right of entitlement to issuance
            of a CUP when a county zoning committee adopts 37
            specific conditions of approval for a CUP, but
            then denies it based on generalized quasi-
            legislative concerns?
                                                              (continued)
                                      3
                                                              No.     2015AP491



    ¶4    AllEnergy's statement of the third issue is premised

on AllEnergy's argument that AllEnergy satisfied, as a matter of

law, all the specific conditions in the ordinance and that the

Trempealeau   County   Environment       &   Land   Use   Committee    cannot

require   AllEnergy    to   satisfy          "subjective,"    "generalized"

conditions and standards in the ordinance.

    ¶5    Before we address each issue in turn, we briefly state

the certiorari standard of review to provide context for the

issues and our decision.




    II.   Do   unsubstantiated  public  comments   on  the
          possible negative impacts of a non-metallic mine
          constitute substantial evidence upon which to
          base a CUP denial?

    III. Should the court adopt a new doctrine that where
         a CUP applicant has shown that all conditions and
         standards, both by ordinance and as devised by
         the zoning committee, have been or will be met,
         the applicant is entitled to the issuance of the
         permit?

    IV.   Did [the Environment & Land Use Committee] exceed
          its jurisdiction by denying a CUP based upon
          generalized concerns, reflecting the exercise of
          policy-based, quasi-legislative authority by a
          committee   whose  members  are   appointed,  not
          elected?

    V.    In addition to violating the judicial notice
          statute, did it violate the due process and equal
          protection rights of the CUP applicant for the
          courts below to refuse to take mandatory judicial
          notice of certain governmental documents?

     This court's order granting AllEnergy's petition for review
limited review to issues II, III, and IV, above.


                                     4
                                                          No.    2015AP491



     ¶6    The first two issues stated above relate to certiorari

review    of   the   Trempealeau   County   Environment   &     Land   Use

Committee's decision denying AllEnergy a conditional use permit.5

A person aggrieved by the denial of a conditional use permit may

commence an action seeking the remedy available by certiorari.

Wis. Stat. § 59.694(10) (2013-14).6

     ¶7    In the instant certiorari review, the decision of the

Trempealeau County Environment & Land Use Committee is accorded

a presumption of correctness and validity.7      Certiorari review is



     5
       See State ex rel. Skelly Oil Co. v. Common Council, City
of Delafield, 58 Wis. 2d 695, 700-701, 207 N.W.2d 585 (1973)
(footnote omitted):

     Conditional uses or as they are sometimes referred to,
     special exceptions uses, enjoy acceptance as a valid
     and successful tool of municipal planning . . . .[A]s
     flexibility devices, which are designed to cope with
     situations where a particular use, although not
     inherently inconsistent with the use classification of
     a particular zone, [conditional uses] may well create
     special problems and hazards if allowed to develop and
     locate as a matter of right in [a] particular zone.
     6
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

     "Certiorari is used to test the validity of decisions made
by administrative or quasi-judicial bodies." Acevedo v. City of
Kenosha, 2011 WI App 10, ¶8, 331 Wis. 2d 218, 793 N.W.2d 500.
     7
       See, e.g., Lamar Cent. Outdoor, Inc. v. Bd. of Zoning
Appeals of City of Milwaukee, 2005 WI 117, ¶16, 284 Wis. 2d 1,
700 N.W.2d 87; Edward Kraemer & Sons, Inc. v. Sauk Cty. Bd. of
Adjustment, 183 Wis. 2d 1, 8, 515 N.W.2d 256 (1994); Sills v.
Walworth Cty. Land Mgt. Comm., 2002 WI App 111, ¶6, 254
Wis. 2d 538, 648 N.W.2d 878.


                                    5
                                                                            No.     2015AP491



limited to whether the Trempealeau County Environment & Land Use

Committee:

      1.     Kept within its jurisdiction;

      2.     Proceeded on a correct theory of law;

      3.     Acted     in     an    arbitrary,    oppressive,          or    unreasonable

             manner that represented its will and not its judgment;

             and

      4.     Might reasonably make the order or determination in

             question based on evidence.8

      ¶8     AllEnergy's focus——and therefore our focus and that of

the circuit court and court of appeals——is on the first and

fourth      inquiries       on      certiorari    review.           Nevertheless,         we

recognize that AllEnergy sometimes seems to fuse its arguments

on the first and fourth inquiries in a certiorari review with

the   third     inquiry,           namely    whether    the       Trempealeau        County

Environment        &   Land        Use   Committee     acted      in    an     arbitrary,

oppressive, or unreasonable manner that represented its will,

not   its    judgment.           Our     discussion    of   the    first      and    fourth
inquiries demonstrates that the determination of the Committee

was not arbitrary, oppressive, or unreasonable:                             The Committee

      8
       Oneida Seven Generations Corp. v. City of Green Bay, 2015
WI 50, ¶41, 362 Wis. 2d 290, 865 N.W.2d 162 (citing Ottman v.
Town of Primrose, 201 WI 18, ¶35, 332 Wis. 2d 3, 796
N.W.2d 411).

     In challenging whether the evidence was such that the
Trempealeau County Environment & Land Use Committee might
reasonably make the determination in question, courts apply the
substantial evidence test. See Part III, infra.


                                              6
                                                                No.   2015AP491



addressed    AllEnergy's   arguments;      the   Committee    addressed     the

provisions of the county's ordinance and its decision was the

result of deliberation and judgment exercised within the range

of discretion accorded it in the ordinance; and the Committee's

determination    was   reasonable,   had    a    rational    basis,   and   was

supported by substantial evidence.9

     ¶9     On certiorari, this court reviews the record of the

Trempealeau County Environment & Land Use Committee, rather than

the judgment or findings of the circuit court or the decision of

the court of appeals.10     We have undertaken an independent review

of the Committee's record but have benefitted from the court of

appeals' comprehensive review.

     9
       A determination of a local governmental entity represents
its will and not its judgment when its action is "arbitrary,
oppressive, or unreasonable."    Snyder v. Waukesha Cty. Zoning
Bd. of Adj., 74 Wis. 2d 468, 475-76, 247 N.W.2d 98 (1976) (An
action is "arbitrary o[r] capricious if it is unreasonable or
without a rational basis."); see also Olson v. Rothwell, 28
Wis. 2d 233, 239, 137 N.W.2d 86 (1965) ("Arbitrary or capricious
action on the part of an administrative agency occurs when it
can be said that such action is unreasonable or does not have a
rational basis. . . . and [is] not the result of the 'winnowing
and sifting' process.") (internal citations omitted); State ex
rel. Harris v. Annuity & Pension Bd., Emp. Ret. Sys. of City of
Milwaukee, 87 Wis. 2d 646, 651–52, 275 N.W.2d 668, 671 (1979)
(the fourth certiorari criterion, whether the evidence was such
that the governmental entity might reasonably make the order
based on evidence, controls the third criterion); see also
Williams v. Housing Auth. of City of Milwaukee, 2010 WI App 14,
¶10, 323 Wis. 2d 179, 779 N.W.2d 185 (a challenge under criteria
three and four of a certiorari review requires a court to
determine whether the decision is founded on insufficient
evidence).
     10
          Oneida Seven Generations Corp., 362 Wis. 2d 290, ¶42.


                                     7
                                                                                   No.     2015AP491



      ¶10       For the reasons set forth, we conclude as follows:

      I.        The    Trempealeau                County       Environment        &      Land     Use

                Committee applied the factors and considerations set

                forth in the applicable ordinance and thus kept within

                its jurisdiction in denying a conditional use permit

                to AllEnergy.

      II.       There is substantial evidence in the record to support

                the    Trempealeau                County       Environment        &      Land     Use

                Committee's             decision     denying        AllEnergy's        application

                for a conditional use permit.

      III. The         court        will     not     overturn        settled      law    governing

                review         of   a     grant    or     denial     of    a    conditional       use

                permit.             The    court     does      not      adopt    the     new    legal

                doctrine urged by AllEnergy, namely that an applicant

                for a conditional use permit is entitled to the permit

                for    a       conditional         use     when     it    meets    the    specific

                conditions           set     forth        in      the     ordinance       and     any

                additional conditions set forth, and that an applicant
                cannot         be    required        to     meet     other       conditions       and

                standards in the ordinance.

      ¶11       Part       I    describes          the     proposed       project       for     which

AllEnergy sought a conditional use permit.                                 In Parts II, III,

and IV, we address each issue stated above.                                     Issues I and II

require     a    fact-intensive              analysis          to    determine        whether     the

Trempealeau County Environment & Land Use Committee kept within

its   jurisdiction             and      whether      substantial          evidence       exists   to
support the Committee's denial of AllEnergy's application for a
                                                    8
                                                                            No.     2015AP491



conditional use permit; the facts are set forth in Parts II and

III.

                                              I

       ¶12       Trempealeau County is home to several frac sand mines.

Trempealeau         County's      rolling      and     bucolic    hills          hide   vast

reserves of silica sand.                   Silica sand is often called "frac

sand,"      in    reference    to    the    material's     use    as    a       proppant   in

hydraulic fracturing, that is, in "fracking."                           Fracking is a

process used to extract previously inaccessible buried reserves

of oil and natural gas.             The process involves drilling an oil or

natural      gas    well    and     using     explosives    to    create          cracks   or

fissures      in    the    rock   or   subsurface       material.           A    mixture   of

water, chemicals, and frac sand is injected to expand and hold

open the cracks or fissures created by the explosives.                              The oil

or natural gas reserves leach out of the cracks and fissures and

into the wells.11

       ¶13       In May 2013, AllEnergy located a site in the Town of

Arcadia in Trempealeau County for a frac sand mine.                             The site is
located in an Exclusive Agriculture 2 (EA-2) zoning district,

which has the stated purpose to "preserve[] class I, II and III

soils       and     additional         irrigated       farmland        from       scattered

residential        developments        that    would    threaten       the       future    of


       11
       For a more in-depth discussion of fracking and frac sand,
see Wisconsin Department of Natural Resources, Industrial Sand
Mining          in         Wisconsin,          June        2016,
http://dnr.wi.gov/topic/EIA/documents/ISMSA/ISMSA.pdf      (last
visited May 22, 2017).


                                              9
                                                                     No.    2015AP491



agriculture . . ." and "to preserve woodlands, wetlands, natural

areas and the rural atmosphere of the County."12

     ¶14     Because     non-metallic    mineral     mining,    including          frac

sand mining, requires a conditional use permit in Trempealeau

County, AllEnergy filed an application for such a permit and a

non-metallic mineral mining reclamation plan with the County on

August 2, 2013.          The application describes a 550-acre project,

which     includes   a   265-acre   mine     site,   a   processing        plant,     a

conveyor system (to move sand and other materials around the

facility),     storm      water   retention     ponds,    and    a     rail        spur

connecting the facility to a Canadian Northern rail line.

     ¶15     AllEnergy's     application      also   explains     that      it      had

received     "favorable     determinations"      from     various      state        and

federal agencies regarding wetland-fill, storm water discharge,

and highway-related permits.

     ¶16     Trempealeau     County's    Department      of    Land    Management

initially     received     the    application    and     referred      it     to    an

engineering firm for third-party review.                 In response to the
engineering firm's concerns, AllEnergy made changes to its plan.




     12
          See Trempealeau County Zoning Ordinance § 2.03(2).


                                        10
                                                                             No.     2015AP491



On August 27, 2013, the Department of Land Management deemed the

plan "complete."13

     ¶17    Tasked with deciding whether a sand mine should be

permitted in the EA-2 zoning district, the Trempealeau County

Environment      &    Land    Use   Committee         held     a    public    hearing      on

AllEnergy's application on October 9, 2013.                         During the hearing,

AllEnergy's representatives and its experts gave presentations

on the project.

     ¶18    After         AllEnergy's      presentations,            the     hearing       was

opened to public testimony.                Thirteen people testified against

permitting the proposed non-metallic mine and two supported the

mine.      In    addition,     letters         and   e-mails       were    read    into    the

record.     According to the circuit court, "[a]pproximately 368

people    went       on   record    as    being       in   favor      of    granting      the

conditional use permit, with the vast majority registering their

support via form letter with little or no comment, including

approximately        51    people   who    are       residents      of     another      state.

Approximately        38    people   went       on    record    as    being     opposed      to
granting    the       conditional        use    permit,       the    majority      of     whom

provided a reason for their position."



     13
       The Department of Land Management deemed the application
complete days before the County adopted a one-year moratorium on
permitting new frac sand mines on August 30 (effective September
1, 2013).   The County adopted the moratorium in order to study
the health and environmental effects of the recent boom in frac
sand mining. Because AllEnergy submitted a complete application
before September 1, the moratorium did not apply to AllEnergy.


                                               11
                                                                                 No.    2015AP491



       ¶19    Generally, those favoring granting the conditional use

permit       cited       increased          employment.              Those     opposed        cited

environmental, health, and cultural concerns.

       ¶20    A      lengthy      discussion             ensued        between       AllEnergy's

representatives           and    the        members       of     the    Trempealeau          County

Environment         &     Land    Use        Committee          regarding        the    concerns

expressed by the public about the project.

       ¶21    During       the    public         hearing,        the    Trempealeau          County

Environment & Land Use Committee reviewed the provisions of the

County       ordinance         concerning         conditional          use     permits,        non-

metallic       mineral          mining        permits,          and      non-metallic          mine

reclamation.            See Trempealeau County Zoning Ordinance chs. 10,

13, 20.        The substance of these ordinance provisions will be

discussed below.           For now, it suffices to say that the Committee

discussed         many    of     the    factors          in    the     ordinance       and     that

AllEnergy was involved in this discussion.

       ¶22    After reviewing the ordinance provisions governing its

decision,         the     Trempealeau            County        Environment       &     Land     Use
Committee discussed what conditions would have to be imposed on

AllEnergy's conditional use permit before it would vote to grant

the permit.         After extensive discussion, the Committee voted 7-1

in favor of imposing numerous conditions on the conditional use

permit.

       ¶23    After       deciding          on     the        approved       conditions,        the

Trempealeau County Environment & Land Use Committee voted 5-3 to

deny AllEnergy's application for a conditional use permit even
with   those       conditions          in    place.           The    five    members     of     the
                                                  12
                                                          No.   2015AP491



Committee who voted to deny the application stated their reasons

for doing so on the record.         The Committee also prepared a

written summary of its decision pursuant to Trempealeau County

Zoning Ordinance § 13.03(4).14

                                   II

     ¶24   AllEnergy's first challenge is that the Trempealeau

County Environment & Land Use Committee did not keep within its

jurisdiction when denying a conditional use permit to AllEnergy

when it based its denial on "legislative concerns implicating

public health, safety, and welfare."

     ¶25   To   support   this   challenge,   AllEnergy   makes   three

arguments.

     ¶26   AllEnergy argues that the Trempealeau County Board of

Supervisors decided, as a legislative matter in enacting the

ordinance, that the public health, safety, and welfare may be

served by allowing non-metallic mineral mining in an Exclusive

Agriculture 2 (EA-2) zoning district.         AllEnergy reasons that

the Trempealeau County Environment & Land Use Committee did not
keep within its jurisdiction in denying AllEnergy a conditional

use permit because the designation of a use in a zoning code as




     14
       Under our cases, no requirement exists that a written
decision be prepared, but, for meaningful review, a reviewing
court must be able to discern from the record or the transcript
of the proceedings before the board the reasons for the denial
of the application for a conditional use permit.     See Lamar
Cent. Outdoor, 284 Wis. 2d 1, ¶¶31-35.


                                   13
                                                                               No.    2015AP491



a    conditional    use     by   the    Board        of    Supervisors         conclusively

establishes that the use is in the public interest.

       ¶27    AllEnergy     also    argues         that    because       the    Trempealeau

County Board of Supervisors included non-metallic mineral mining

as a conditional use within an EA-2 zoning district, such a use

is     presumptively      valid        and     the        proper     inquiry         for     the

Trempealeau County Environment & Land Use Committee is whether

the conditional use at the particular location carries impacts

greater than the adverse impacts ordinarily associated with that

use.        AllEnergy   asserts        further       that     it    is    entitled          to   a

conditional use permit as of right because no evidence in the

record       demonstrates    that       the        proposed       non-metallic         mineral

mining site at the particular location carries impacts greater

than the adverse impacts ordinarily associated with that use.15

       ¶28    AllEnergy     further      bolsters           its    position          that    the

Trempealeau County Environment & Land Use Committee did not keep

within its jurisdiction by arguing that the guideline of "public

health, safety or general welfare" is too general to supply the
necessary guidance for action by the Committee.                           In making this

argument AllEnergy does not refer to the constitution in its

briefs, but its argument is a constitutional one attacking the

ordinance as an invalid delegation of power to the Committee.




       15
       AllEnergy   relies on   Maryland  cases   adopting  this
standard. See, e.g., Mossburg v. Montgomery Cty., 666 A.2d 1253
(Md. Ct. App. 1995).


                                              14
                                                                       No.     2015AP491



       ¶29     At     oral   argument,     Justice     Ziegler        asked    whether

AllEnergy        was     challenging       the     constitutionality           of     the

ordinance.          Counsel for AllEnergy replied that the court stopped

him from making such an argument.

       ¶30     The dialogue at oral argument proceeded as follows:

       Justice Ziegler:   I'm curious, it doesn't seem that
       you have specifically made constitutional arguments
       that this is an unconstitutional delegation of
       authority or that this ordinance is unconstitutional
       either   facially  or  as   applied,   or   any other
       constitutional claims. I'm curious why not.

       AllEnergy's counsel:    Because this court told me I
       couldn't make them.   That was one of the issues that
       we raised in our petition for review and the court
       granted review on the three issues that are stated in
       its order granting the petition.       We did raise a
       constitutional issue, but it is not before this court.
       ¶31     Justice Ziegler and counsel, however, spoke past each

other.       AllEnergy's response to Justice Ziegler should have been

that     it    did     not   raise    an    unconstitutional          delegation       of

authority claim or make any facial or as-applied constitutional

claim in its petition for review.                 See ¶3 n.3, supra (describing
AllEnergy's statement of issues in its petition for review).

       ¶32     AllEnergy's      petition         for   review     did         raise     a

constitutional issue that the court did not address in granting

review.       AllEnergy's petition for review raised a violation of

due process and equal protection relating to judicial notice of

certain       documents.      See    ¶3    n.3,    supra.      This    was     not    the

constitutional argument to which Justice Ziegler was referring.

       ¶33     Undeniably,          AllEnergy's        brief      attacks             the
constitutionality of the Trempealeau County ordinance, relying

                                           15
                                                                          No.     2015AP491



throughout its brief (in pages too numerous to cite in its Table

of Authorities) on State ex rel. Humble Oil & Refining Co. v.

Wahner, 25 Wis. 2d 1, 130 N.W.2d 304 (1964), a case successfully

challenging the constitutionality of an ordinance on the grounds

of invalid standards in the ordinance.

    ¶34   Trempealeau      County's             brief     correctly          objects         to

AllEnergy's    diverging   into       a    constitutional             argument    in        its

discussion of whether the Trempealeau County Environment & Land

Use Committee exceeded its jurisdiction.

    ¶35   We disagree with the positions that AllEnergy urges.

We conclude:

      (A) By adhering to the Trempealeau County ordinance, the

          Trempealeau      County Environment & Land Use                        Committee

          kept within      its jurisdiction in denying AllEnergy's

          application      for    a        conditional          use    permit     in        the

          instant case.

    ¶36   AllEnergy supports its challenge to the Committee's

jurisdiction by three arguments.                 As to these three arguments,
we conclude:

      (B) Designation      of    non-metallic             mineral        mining        as     a

          conditional      use        in        the     zoning        code      does        not

          conclusively establish that the use is in the public

          interest.

      (C) The    proper    inquiry          is    not     whether        the     proposed

          conditional      use    carries             impacts     greater       than        the

          adverse impacts ordinarily associated with that use,
          and
                                           16
                                                                     No.   2015AP491



      (D) The guidelines           in the     Trempealeau County ordinance,

            including the requirement that the Committee consider

            "public      health,     safety       or     general   welfare,"    are

            constitutional.

                                        A

     ¶37    To    determine         whether        the      Trempealeau       County

Environment & Land Use Committee kept within its jurisdiction,

we compare the terms of the ordinance to the Committee's action.

The "kept within its jurisdiction" inquiry on certiorari review

considers     whether      the      applicable         ordinance     grants     the

Trempealeau      County    Environment        &    Land     Use    Committee     the

authority to take the action it took.                    The Trempealeau County

Environment & Land Use Committee, as an agency created by the

County's legislative body, has those powers that are expressly

conferred   or    that    are   necessarily       implied     by   the   ordinances

under which it operates.16

     ¶38    The Trempealeau County Zoning Ordinance enacted by the

Trempealeau County Board of Supervisors lists various criteria
the Trempealeau County Environment & Land Use Committee is to

     16
       Kimberly-Clark Corp. v. Pub. Serv. Comm'n of Wis., 110
Wis. 2d 455, 461–62, 329 N.W.2d 143 (1983) (citing Elroy-
Kendall-Wilton Schs. v. Coop. Educ. Serv., 102 Wis. 2d 274, 278,
306 N.W.2d 89 (Ct. App. 1981)).        See also Wis. Citizens
Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶14, 270
Wis. 2d 318, 334–35, 677 N.W.2d 612 ("It is axiomatic that
because the legislature creates administrative agencies as part
of the executive branch, such agencies have only those powers
which are expressly conferred or which are necessarily implied
by the statutes under which it operates.") (internal quotation
marks omitted).


                                       17
                                                                        No.   2015AP491



consider in deciding whether to grant or deny an application for

a conditional use permit.

      ¶39    The     ordinance    requires          the         Trempealeau     County

Environment & Land Use Committee to "review each conditional use

permit      application     for   compliance             with     all   requirements

applicable     to    that   specific    use    and       to     all   other   relevant

provisions     of    this   Ordinance."            The    ordinance     specifically

directs the Committee to approve a conditional use permit only

if it determines that "the proposed use at the proposed location

will not be contrary to the public interest and will not be

detrimental or injurious to the public health, public safety, or

character of the surrounding area."                  Trempealeau County Zoning

Ordinance § 10.04(5)(a).

      ¶40    The    Trempealeau   County      Zoning Ordinance           provides   16

other factors to guide the Trempealeau County Environment & Land

Use   Committee's       inquiry    in        its     decision-making          function

regarding a conditional use permit, including:

      1. Whether the proposed project will adversely affect
      property in the area.

      2. Whether the proposed use is similar to other uses
      in the area.

      3. Whether the proposed project is consistent with
      adopted Trempealeau County plans or any officially
      adopted town plan.

             . . . .

      7. Whether the proposed use creates noise, odor, or
      dust.

             . . . .


                                        18
                                                                            No.    2015AP491


       11. Provision for proper surface water drainage.

              . . . .

       13. Whether the proposed project creates excessive
       exterior lighting glare or spillover onto neighboring
       properties.

       14. Whether the proposed project leads to a change in
       the natural character of the area through the removal
       of natural vegetation or altering of the topography.

       15. Whether the proposed project would                           adversely
       affect the natural beauty of the area.

       16. Whether the proposed project would                           adversely
       affect any historic or archeological sites.
Trempealeau County Zoning Ordinance § 10.04(5)(b).

       ¶41    Moreover, the Trempealeau County                    Environment & Land

Use    Committee      is   not       limited      to     considering        the    factors

specified in the ordinance.                It may consider "additional factors

as    are    deemed   by   it   to    be    relevant      to     its   decision     making

process . . . ."                Trempealeau            County      Zoning         Ordinance

§ 10.04(5)(b).          The     Committee        did    not     rely   on   this    latter

provision.

       ¶42    In addition to the criteria governing the granting of
conditional use permits stated above, additional considerations

for authorizing non-metallic mineral mining are set forth in

chapter 13 of the Trempealeau County Zoning Ordinance.                                  The

Trempealeau County Environment & Land Use Committee is required

to analyze proposals for non-metallic mineral mining "in light

of the County's interest in providing for the wise use of the

natural resources of the county, aesthetic implications of the
siting of such a mine at a given location and the impacts of


                                            19
                                                                           No.     2015AP491



such   a     mining       operation     on    the   general     health,       safety     and

welfare of the public."                 Trempealeau County Zoning Ordinance

§ 13.01.

       ¶43    The      zoning     ordinance    governing      non-metallic          mineral

mining sets forth another eight factors the Trempealeau County

Environment & Land Use Committee shall consider, "among other

factors,"     when        considering    an    application      for    a     non-metallic

mineral mine permit:

       (a) When considering an application for a non-metallic
       mineral mine permit, the County shall consider, among
       other factors, the following: the effect or impact of
       the    proposed     operation    upon;      (1)    public
       infrastructure, including but not limited to streets
       and highways, schools and other public facilities; (2)
       present and proposed uses of land in the vicinity of
       the proposed operation; (3) surface water drainage,
       water quality and supply; (4) soil erosion; (5)
       aesthetics, including but not limited to scenic beauty
       and   the   conservation   of   natural    resources   of
       outstanding quality or uniqueness; (6) the market
       value of lands in the vicinity of the proposed
       operation;    (7)   the    physical    practicality    of
       reclamation of the site after the operation has been
       concluded; and (8) the public interest from the
       standpoints of smoke, dust, noxious or toxic gases and
       odors, noise, vibration, blasting and the operation of
       heavy machinery and equipment.
Trempealeau County Zoning Ordinance § 13.03(3)(a).

       ¶44    The ordinance also requires the Committee to determine

whether      the       proposed     non-metallic       mining     operation         is   an

appropriate land use at the site in question, including the

ability      of     the    operator     to     avoid   harm     to     the       legitimate

interests         of   properties       in    the   vicinity      of       the     proposed
operation, as follows:


                                              20
                                                                    No.   2015AP491


       (b) In order to grant a conditional use permit for
       non-metallic mineral mining, the County shall find
       that the proposed operation is an appropriate land use
       at the site in question, based upon consideration of
       such factors as: existence of non-metallic mineral
       deposits;   proximity   of   site   to   transportation
       facilities and to markets; and the ability of the
       operator to avoid harm to the public health, safety
       and welfare and to the legitimate interests of
       properties in the vicinity of the proposed operation.
Trempealeau County Zoning Ordinance § 13.03(3)(b).

       ¶45    The    ordinance     acknowledges,        however,    despite     the

extensive criteria outlined above, that it is "impossible to

prescribe the criteria upon which such a permit may be granted

in each and every case."             Trempealeau County Zoning Ordinance

§ 13.01.

       ¶46    In     determining     whether      to     grant      AllEnergy    a

conditional        use   permit,   the   Trempealeau     County    Environment   &

Land Use Committee considered and applied the criteria set forth

in the ordinance.

       ¶47    Each member of the Trempealeau County Environment &

Land    Use    Committee     who    voted     against    granting    AllEnergy's

application stated his or her reasons as follows:

       Committee member Vold: The reason I thought it was an
       attempt to [negate] the moratorium was that——I wasn't
       here for the moratorium but I read it. I thought that
       the booklet was quite incomplete, there was too many
       unanswered questions in the application process and I
       felt there was more questions than there were answers.

       Committee member Zeglin:   I too agree that the plan
       seemed to be rushed; it was revised after the third
       party review.    Things should have completed before
       that and it leads one to wonder how many times it may
       be revised again.     The lack of a reclamation plan
       provided in the initial plan.   That should have been

                                         21
                                              No.   2015AP491


done initially.      I have numerous environmental
concerns about the significant wetlands in the area,
the river at this point historically was and is
constantly changing it is very hard to plan anything
on a long range basis.   I'm very concerned with the
water table in the area——it is very high.  I haven't
been convinced that it will not be disturbed.   Virg
you can add the river constantly floods, changes
course.

Committee member Brandt:     My reasons were wetland
location is too close to sensitive water and wildlife
resources and the inability of the applicant to
mitigate those concerns to my satisfaction.    Um, the
possibility of possible significant danger to ground
water, by processes involved in mining and processing,
and the high capacity well.         Number 3 is the
significant change to the landscape and to the local
cultural . . . and social conditions.     Um, and the
other issues that had been brought up by staff and the
public included the reclamation plan.

Committee member Patzner: Well, I represent the Farm
Service Agency and I'm for agriculture.    Agriculture
has a history of bringing stability and jobs to our
local economy, where sand mines have a history of boom
or bust on the local economy, therefore destroying
good productive agricultural land is not a wise
decision.    We don't want to destroy our outdoor
recreation potential, like hunting, biking and other
activities that attract visitors, retirees and people
that love scenic beauty who are close to work and live
here.   There are health concerns with mining so we
need to protect our residents.

Committee member Bawek: Based on information given as
referenced and my own findings, along with public
concerns given at this meeting, this siting does not
seem to be in the best interest of our citizens nor in
the best use of our natural resources of Trempealeau
County.    Soil around and in the site bring into
question the potential for water problems. Trout Run
Creek and the close proximity to the Trempealeau River
deem this site as poor.    The potential loss of some
unique resources for both ourselves and         future
generations comes into question. That's it.



                          22
                                                                                     No.    2015AP491



          ¶48     It is evident that the Trempealeau County Environment

&    Land       Use    Committee          exercised      the     powers      conferred       by    the

ordinance.            It considered factors set forth in the ordinance for

granting a conditional use permit.                             These factors included the

impact of AllEnergy's mine on the general health, safety, and

welfare of the public; the wise use of the county's material

resources; the aesthetic implications of the siting of the mine;

and       the     adverse       effects       of        the    mine     on     the    environment

(including water quality, ground water, and wetlands), scenic

beauty,         wildlife,           and     recreational          opportunities.              After

considering            these        factors,       the        Committee        determined         that

AllEnergy's application for a conditional use permit should be

denied.

          ¶49     Because the Trempealeau County Environment & Land Use

Committee considered the factors the Trempealeau County Board of

Supervisors directed the Committee to consider, we conclude that

the Committee kept within its jurisdiction.

                                                    B
          ¶50     Our case law has not accepted what AllEnergy advocates

as    a    new        doctrine      in     Wisconsin,         namely    that     a    legislative

listing         of      a     conditional          use        equates     to     a    legislative

determination that the use is in the public interest.                                      AllEnergy

urges       the       court    to    apply     this       doctrine      and     hold       that    the

Trempealeau County Environment & Land Use Committee did not keep

within its jurisdiction when it denied a conditional use permit

for non-metallic mineral mining, a conditional use listed in the
ordinance.
                                                   23
                                                                     No.     2015AP491



       ¶51    In Edward Kraemer & Sons, Inc. v. Sauk County Board of

Adjustment, 183 Wis. 2d 1, 7, 16-17, 515 N.W.2d 256 (1994), the

court declared that the court of appeals erred in believing

"that the mineral extraction permit had to be granted and if

conditions         were    necessary       to    ensure   compliance       with   the

ordinance, the Board was obligated to fashion them."

       ¶52    Indeed, the Kraemer court concluded that conditional

uses may be authorized pursuant to the ordinance, but they are

not uses as of right.             They are allowed only if approved by the

appropriate local governmental authority.17

       ¶53    In Delta Biological Resources, Inc. v. Board of Zoning

Appeals of         the    City of Milwaukee, 160          Wis. 2d 905, 912,       467

N.W.2d 164 (Wis. App. 1991), the court of appeals emphasized:

"[T]he presumption that the conditional use serves the public

interest[      ]    does    not    exist    in    Wisconsin. . . .     The    zoning

ordinance allows certain uses, provided certain conditions are

met.        These conditions are not presumed to be met either by

judicial fiat or by the terms of the ordinance . . . ."18

       17
        See also Town of Rhine v. Bizzell, 2008 WI 76, ¶¶55-57,
311 Wis. 2d 1, 751 N.W.2d 780 (quoting Primeco Pers. Commc'ns,
L.P. v. City of Mequon, 242 F. Supp. 2d 567, 576 (E.D. Wis.
2003)).
       18
       Delta Biological's argument, which the court of appeals
dismissed, was that "a presumption arises that [a conditional]
use serves the public interest from the fact that the
legislature permits it, and the special use itself, therefore,
presumes a legislative determination that a public need for the
use exists."    Delta Biological Res., Inc. v. Bd. of Zoning
Appeals of the City of Milwaukee, 160 Wis. 2d 905, 911-12, 467
N.W.2d 164 (Wis. App. 1991).


                                            24
                                                                                     No.    2015AP491



         ¶54     In Wisconsin, and in many states, a conditional use is

one that has been legislatively determined to be compatible in a

particular         area,     not    a    use     that    is       always    compatible         at    a

specific site within that area.                        In these states, the decision

whether to grant a conditional use permit is discretionary.                                        The

relevant         entity      determines        whether        a     particular          site    will

accommodate         a     proposed       particular       use.             In    other      states,

decision         makers      have       less     discretion          on     requests         for    a

conditional use permit.19

         ¶55     Thus,     our     precedent          dictates       that       no    presumption

exists that a conditional use is ipso facto consistent with the

public interest or that a conditional use is a use as of right

at   a        particular     site       within    an    area       zoned        to   permit     that

conditional         use.20         No    compelling       reason      has        been      given    to

justify deviating from Wisconsin precedent and eliminating site-

specific flexibility in local zoning matters.

                                                  C

         19
       See Daniel R. Mandelker & Allan Wolk, Land Use Law § 6.53
(6th ed. 2016); 2 Patricia E. Salkin, American Law of Zoning
§§ 14:1, 14:6 (6th ed. 2016); Rathkopf's The Law of Zoning and
Planning §§ 60:5, 60:9, 60:10, 61:5-:8, 61:34-:38 (2016).
         20
       "The principle of stare decisis applies to published
decisions of the court of appeals, and stare decisis requires us
to follow court of appeals precedent unless a compelling reason
exists to overrule it."   Wenke v. Gehl Co., 2004 WI 103, ¶21,
274 Wis. 2d 220, 682 N.W.2d 405 (citations omitted).    See also
State v. Ziegler, 2012 WI 73, ¶114, 342 Wis. 2d 256, 816
N.W.2d 238;   Wis.  Stat.  § 752.41(2)   ("Officially  published
opinions of the court of appeals shall have statewide
precedential effect.").


                                                 25
                                                                              No.    2015AP491



    ¶56     No    Wisconsin        case     has     concluded       that       the    proper

inquiry     for     a    local     government       entity     in       considering         an

application       for     a    conditional        use    permit        is     whether      the

conditional use carries adverse impacts greater than the adverse

impacts ordinarily associated with that use.                      This approach does

not comport with precedent, and no compelling reason has been

given to justify deviating from precedent.

                                            D

    ¶57     AllEnergy bolsters its argument that the Trempealeau

County Environment & Land Use Committee did not keep within its

jurisdiction        in        denying     AllEnergy's         application            for     a

conditional use permit with the contention that the provisions

of the Trempealeau County ordinance impermissibly require the

Committee    to     look      at   "legislative         considerations          of    public

health,   safety        and    welfare."          According       to    AllEnergy,         the

Committee     can       consider    only     objective       factors,          not    public

interest factors.

    ¶58     It    appears       that    AllEnergy       is   trying      to     shoehorn    a
constitutional challenge into the "exceeds jurisdiction" aspect

of certiorari review without explicitly saying so.                            See ¶¶29-33,

supra.

    ¶59     We      understand          AllEnergy       to   be        challenging         the

Trempealeau County Ordinance on the ground that its standards

are unconstitutionally vague and do not guide the Trempealeau

County    Environment          &   Land    Use      Committee's         decision-making




                                            26
                                                              No.   2015AP491



process.21      We   are   not   persuaded    by     AllEnergy's     implied

constitutional argument.

     ¶60     To begin, we emphasize our role in determining the

constitutionality of an ordinance.           An ordinance is presumed

valid.     It must be liberally construed in favor of the decision

rendered by the local governmental entity.22          A party challenging

the constitutionality of an ordinance bears a heavy burden to

show that the ordinance is unconstitutional beyond a reasonable

doubt:

     The role of courts in zoning matters is limited
     because zoning is a legislative function.          An
     ordinance is presumed valid and must be liberally
     construed in favor of the municipality. The party
     challenging the constitutionality of an ordinance
     bears a heavy burden.    In Wisconsin, "an ordinance
     will be held constitutional unless the contrary is
     shown beyond a reasonable doubt, and the ordinance is
     entitled to every presumption in favor of its
     validity."
Town of Rhine v. Bizzell, 2008 WI 76, ¶26, 311 Wis. 2d 1, 751

N.W.2d 78 (citations omitted).

     ¶61     Edward Kraemer & Sons, Inc. v. Sauk County Board of

Adjustment, 183 Wis. 2d 1, 515 N.W.2d 256 (1994), illustrates an

ordinance    permissibly   requiring    a   zoning   entity   to    consider

public interest factors in issuing a conditional use permit.

     21
       "When   an   ordinance   vests  discretionary power in
administrative officials it must prescribe standards to guide
their action." State ex rel. Humble Oil & Refining Co. v.
Wahner, 25 Wis. 2d 1, 7, 130 N.W.2d 304 (1964).
     22
       Bizzell, 311 Wis. 2d 1, ¶26 (citing State ex rel. Am. Oil
Co. v. Bessent, 27 Wis. 2d 537, 546, 135 N.W.2d 317 (1965)).


                                   27
                                                                             No.   2015AP491



     ¶62    In Kraemer, the Sauk County Board of Adjustment denied

an application for a conditional use permit to extract minerals

because    of    concern    that      the   project      would       harm    the   Baraboo

Bluffs,     "an    important       natural        resource."                Kraemer,    183

Wis. 2d at 11.           The court explained that, under the ordinance

governing the granting of a special exception permit for mineral

extraction,23      the     Board   must      consider         "the    ability      of   the

operation . . . to avoid harm to the public health, safety and

welfare and to the legitimate interests of nearby properties."

Kraemer, 183 Wis. 2d at 6.

     ¶63    The petitioner, Edward Kraemer & Sons, argued that the

standards    in    the    ordinance     are      not    sufficiently         specific    to

withstand       attack     on   the    grounds         that    they     constitute       an

unconstitutional delegation of legislative authority.                              Kraemer,

183 Wis. 2d at 13.

     ¶64    The Kraemer court upheld the constitutionality of the

Sauk County ordinance's standard of public health, safety, and

welfare as permissible criteria for the Board to consider in
determining whether to grant a conditional use permit, stating:

     [T]he "public health, safety and welfare" standard[ ]
     is a general standard that provides the Board with
     flexibility and discretion to consider how a proposed
     special exception could affect the public welfare.
     The standard allows the Board to consider potential
     harm to individuals living near the proposed mineral

     23
       The phrase "special exception permit" has been used
interchangeably with "conditional use permit."  State ex rel.
Skelly Oil Co. v. City of Delafield, 58 Wis. 2d 695, 700, 207
N.W.2d 585 (1973).


                                            28
                                                             No.   2015AP491


    extraction site, including exposure to health hazards
    from the dust and threats to safety posed by blasting.
    The public health, safety and welfare standard is also
    broad enough to enable the Board to consider the
    generalized effects on the public welfare that
    concerned the Board in this case——harm to the public
    that would result from partial destruction of a
    natural area that both permit supporters and opponents
    agree is of great geological importance.
Kraemer, 183 Wis. 2d at 11.

    ¶65      The Kraemer court, 183 Wis. 2d 1, 14, citing 3 Edward

H. Ziegler, Rathkopf's The Law of Zoning and Planning § 41.11 at
41-49 (4th ed. 1993), further declared that these "generalized

standards are acceptable in most jurisdictions."             The mere fact

that the "standards are general in nature does not impair the

validity of these portions of the ordinance."                Kraemer,   183

Wis. 2d 1,     14-15.     According     to   the   Kraemer     court,   183

Wis. 2d 1,     14   (quoting   Rathkopf's    § 41.11   at     41-49),   the

ordinance's general standards served a beneficial purpose:

    The purpose of the special exception-conditional use
    technique is to confer a degree of flexibility in the
    land use regulations. This would be lost if overly
    detailed standards covering each specific situation in
    which the use is to be granted or, conversely, each
    situation in which it is to be denied, were required
    to be placed in the ordinance.




                                   29
                                                                         No.    2015AP491



      ¶66   The Kraemer court ultimately ruled that the standards

in the Sauk County ordinance were specific enough to guide the

action of the Board.           Kraemer, 183 Wis. 2d at 11-12.24

      ¶67   AllEnergy calls on the court to overrule Kraemer and

to be guided instead by State ex rel. Humble Oil & Refining Co.

v. Wahner, 25 Wis. 2d 1, 130 N.W.2d 304 (1964).                          The reference

to Humble Oil is unavailing.

      ¶68   In Humble Oil, a town's zoning ordinance classified

gas stations as conditional uses.                  Gas stations were permitted

as a conditional use in a commercial zone only if approved by

the   zoning    board     of    appeals.         The    only   "guideline"       in   the

ordinance      provided     that    "in     interpreting          and    applying      the

provisions     of   this    ordinance      they        shall   be   held   to    be   the

minimum requirements for the promotion of the public health,

safety,     convenience,        prosperity       or     general     welfare . . . ."

Humble Oil, 25 Wis. 2d at 7.

      ¶69   The Humble Oil court concluded that this "guideline"

does not prescribe adequate standards to govern the board in its
disposition of a request to build a filling station.                           The court

characterized       the    "guideline"      as    a     listing     of   factors      that

      24
       Criteria to be considered such as the following appear in
the statutes governing the granting of applications for various
permits: ""enjoyment of natural scenic beauty and environmental
quality," "will not endanger life, health or property,"
"reasonable needs of the public," "public interest," "not have
undue adverse impact on other environmental values such as, but
not   limited   to,  ecological   balance,  public   health   and
welfare, . . . the aesthetics of land and water and recreational
use" See, e.g., Wis. Stat. §§ 31.06(3), 31.08, 196.491(3)(d).


                                           30
                                                                              No.    2015AP491



justify the zoning ordinance; the factors are too general and

too remotely related to what the board is required to do to

supply the necessary guidelines for the board or Humble Oil.

The court stated that the ordinance did not "inform Humble and

any other parties hoping to build filling stations of what was

required of them and what factors were to be considered by the

board in disposing of each application . . . and this was bound

to create a situation in which the board could do just as it

pleased."    Humble Oil, 25 Wis. 2d at 11.

      ¶70   The    court     was    careful        in    Humble     Oil,      however,      to

preserve    the    board's      exercise      of       discretion       and   judgment     in

issuing conditional use permits.                   The Humble Oil court reviewed

several cases that addressed the validity of the standards set

forth in zoning ordinances.             Humble Oil, 25 Wis. 2d at 8-9.                     For

instance,    in    discussing         prior       cases       ruling     on    whether     an

ordinance    was    too    broad,      the    court          referred    approvingly       to

ordinances that "contained guidelines that pinpointed some of

the   considerations         that      were       to     govern     the       exercise     of
discretionary power either by the common council or the zoning

board."      Humble      Oil,    25    Wis. 2d         at     9.    In    contrast,        the

ordinance   in     the    Humble      Oil    case      did    not   pinpoint        any   such

considerations.

      ¶71   Applying Kraemer and Humble Oil, we conclude that the

Trempealeau County ordinance at issue in the instant case is

more similar to the Kraemer ordinance and to the ordinance the

court upheld in Smith v. City of Brookfield, 272 Wis. 1, 7-10,


                                             31
                                                          No.   2015AP491



74 N.W.2d 770 (1956),25 than to the ordinance the court declared

unconstitutionally vague in Humble Oil.

     ¶72    After comparing Humble Oil and Smith, the court of

appeals in Guse v. City of New Berlin, 2012 WI App 24, ¶¶10-12,

339 Wis. 2d 399, 810 N.W.2d 838, concluded that "ordinances may

vest boards with some (and even significant) discretion without

being     unconstitutionally   vague."      Like   the   ordinances   in

Kraemer, Smith, and Guse, Trempealeau County's zoning ordinance

does not "blanket the [Committee] with unfettered discretion."

Guse, 339 Wis. 2d 399, ¶11.26

     ¶73    In sum, the Trempealeau County Environment & Land Use

Committee    kept   within   its   jurisdiction.    It   exercised    its

discretion in deciding whether to grant AllEnergy's application




     25
       In Smith v. City of Brookfield, 272 Wis. 1, 7-10, 74
N.W.2d 770 (1956), the court held that a general statement of
purpose contained in the preamble to the town's comprehensive
zoning ordinance provided sufficient guidance.      The stated
purpose was "to provide adequate light, pure air, and safety
from fire and other dangers, to conserve the taxable value of
land and buildings throughout the township, to avoid congestion
in the public streets and highways and to promote the public
health, safety, comfort, morals, and welfare, all in accordance
with a comprehensive zoning plan . . . ."         (Emphasis in
original.)
     26
       See also Town of Grand Chute v. U.S. Paper Converters,
Inc., 229 Wis. 2d 674, 686, 600 N.W.2d 33 (Ct. App. 1999)
(concluding that "a town, regulating development within its
boundaries, must create an ordinance [with enough specificity]
to give developers reasonable notice of the areas of inquiry
that the town will examine in approving or disapproving proposed
sites.").


                                    32
                                                                       No.   2015AP491



for a conditional use permit, adhering to the criteria set forth

in the ordinance.

                                         III

      ¶74       We turn now to the second issue AllEnergy presents:

Whether the Trempealeau County Environment & Land Use Committee

"might reasonably make the order or determination in question

based      on   evidence."     This    issue     raises    the   question     of    the

sufficiency of the evidence supporting the Committee's decision.

The     sufficiency     of    the     evidence     is     determined     under      the

substantial evidence test.27

      ¶75       Substantial evidence is evidence of such convincing

power that reasonable persons could reach the same decision as

the     local     governmental      entity,28     even      if   there       is    also

substantial        evidence    to     support      the     opposite      decision.29




      27
       Gehin v. Wis. Group Ins. Bd., 2005 WI 16, ¶6 nn.5-6, 278
Wis. 2d 111, 692 N.W.2d 572 (citing State ex rel. Harris &
Annuity Pension Bd., 87 Wis. 2d 646, 652, 275 N.W.2d 668
(1979)).
      28
           Oneida Seven Generations Corp., 362 Wis. 2d 290, ¶43.

     See also Gehin, 278 Wis. 2d 111, ¶48 ("Substantial evidence
has been defined in the case law as 'that quantity and quality
of evidence which a reasonable [person] could accept as adequate
to support a conclusion.") (footnotes and citations omitted).
      29
       Sills v. Walworth Cty. Land Mgt., 2002 WI App 111, ¶¶10-
11, 254 Wis. 2d 538, 648 N.W.2d 878 ("We must uphold the
Committee's decision so long as it is supported by substantial
evidence, even if there is also substantial evidence to support
the opposite conclusion.").


                                         33
                                                                                  No.    2015AP491



Reasonable inferences may be drawn from credible evidence.30                                    If

"credible, relevant and probative evidence upon which reasonable

persons could rely to reach a decision" supports the decision of

the Trempealeau County Environment & Land Use Committee, the

court will uphold the decision.31

      ¶76       Quantitatively, substantial evidence is less than a

preponderance of the evidence, Smith v. City of Milwaukee, 2014

WI App 95, ¶22, 356 Wis. 2d 779, 854 N.W.2d 857, but                                "more than

'a mere scintilla' of evidence and more than 'conjecture and

speculation.'"            Gehin v. Wis. Group Ins. Bd., 2005 WI 16, ¶48,

278 Wis. 2d 111, 692 N.W.2d 572 (quoted sources omitted).

      ¶77       AllEnergy        contends        that    there        is     no    substantial

evidence        in   the    record       upon        which    the     Trempealeau         County

Environment          &    Land     Use     Committee          could        deny    AllEnergy's

application          because      the     Committee          could     not    rely       on     the

"uncorroborated hearsay" in the record or the lay opinions by

persons lacking appropriate special expertise.

      ¶78       AllEnergy errs in trying to apply the Wisconsin Rules
of   Evidence        to    the    instant       case.         The     Wisconsin         Rules   of

Evidence         govern          court     proceedings,              not      administrative

proceedings.             Wisconsin       Stat.    § 901.01       states       that      Chapters

901.01     to    901.11,       the   Wisconsin          Rules    of    Evidence,         "govern


      30
       Delta Biological Res., Inc. v. Bd. of Zoning Appeals of
City of Milwaukee, 160 Wis. 2d 905, 910-915, 467 N.W.2d 164 (Ct.
App. 1991).
      31
           See Sills, 254 Wis. 2d 538, ¶11.


                                                34
                                                                        No.     2015AP491



proceedings in the courts of the state of Wisconsin . . . ."

The Wisconsin Rules of Evidence, by their very terms, do not

govern the proceedings of the Trempealeau County Environment &

Land Use Committee, administrative proceedings.

        ¶79    More   recently,     this    court     stated:      "[A]n      agency   or

hearing       examiner   is   not   ordinarily        bound    by     common    law    or

statutory rules of evidence."              Gehin, 278 Wis. 2d 111, ¶¶6, 49-

50.32

        ¶80    AllEnergy cites Folding Furniture Works v. Wisconsin

Labor Relations Board, 232 Wis. 170, 285 N.W. 851 (1939), as

support for its restrictive view of what constitutes substantial

evidence.       But Folding Furniture does not support AllEnergy.

        ¶81    In   Folding   Furniture,        232   Wis.    at    188,      the   court

stated       that   an   administrative         decision     cannot    be     based    on


        32
       On certiorari review, the substantial evidence test is
the same substantial evidence test used for the review of
administrative determinations under Wis. Stat. ch. 227. Gehin,
278 Wis. 2d 111, ¶6.

     The statute governing the admission of evidence before
administrative   agencies   in  contested   cases,  Wis.   Stat.
§ 227.45(1), states that an agency is not bound by common law or
statutory rules of evidence and adopts a "reasonable probative
value test" for admission of testimony:

        [A]n agency or hearing examiner shall not be bound by
        common law or statutory rules of evidence. The agency
        or hearing examiner shall admit all testimony having
        reasonable   probative    value,   but    shall    exclude
        immaterial,    irrelevant     or    unduly    repetitious
        testimony . . . .   Basic    principles    of   relevancy,
        materiality and probative force shall govern the proof
        of all questions of fact.


                                           35
                                                             No.   2015AP491



uncorroborated hearsay alone; uncorroborated hearsay alone does

not constitute substantial evidence.         But Folding Furniture made

clear that an administrative decision is based on substantial

evidence if it is based on evidence having rational probative

force.

    ¶82    Folding Furniture, 232 Wis. at 189, quotes with favor

Consolidated Edison Co. of New York v. National Labor Relations

Board, 305 U.S. 197, 229-30 (1938), in which the United States

Supreme Court stated:       Mere uncorroborated evidence does not

constitute    substantial   evidence.       Substantial   evidence    means

evidence   having    rational   probative    force,   that   is,   relevant

evidence accepted by a reasonable mind as adequate to support a

conclusion.    The Consolidated Edison Court stated as follows:

    The obvious purpose of this and similar provisions
    [freeing   an  administrative  agency   of   rules   of
    evidence] is to free administrative boards from the
    compulsion of technical rules so that the mere
    admission of matter which would be deemed incompetent
    in judicial proceedings would not invalidate the
    administrative order. . . . But this assurance of a
    desirable flexibility in administrative procedure does
    not go so far as to justify orders without a basis in
    evidence having rational probative force.          Mere
    uncorroborated hearsay or rumor does not constitute
    substantial evidence.

           . . . .

    Substantial evidence is more than a mere scintilla.
    It means such relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion.
    (Emphasis added and citations omitted).
    ¶83    As this court discussed in Gehin, a subsequent United
States Supreme Court case, Richardson v. Perales, 402 U.S. 389,


                                   36
                                                                              No.   2015AP491



407-08 (1971), explained the Consolidated Edison language that

"mere   uncorroborated         hearsay"      is    not    substantial         evidence    by

emphasizing        the    language         "rational      probative           effect"    and

explaining that hearsay can have such an effect:

       Although the [medical] reports are hearsay in the
       technical sense, because their content is not produced
       live before the hearing examiner, we feel that the
       claimant and the Court of Appeals read too much into
       the single sentence from Consolidated Edison.      The
       contrast the Chief Justice was drawing, at the very
       page cited, was not with material that would be deemed
       formally inadmissible in judicial proceedings but with
       material 'without a basis in evidence having rational
       probative force.' This was not a blanket rejection by
       the Court of administrative reliance on hearsay
       irrespective of reliability and probative value. The
       opposite was the case.
       ¶84    In Gehin v. Wisconsin Group Insurance Board, 2005 WI

16, ¶54, 278 Wis. 2d 111, 692 N.W.2d 572, the court reinforced

Folding       Furniture     (and     Consolidated         Edison),        stating       that

Folding Furniture allows flexibility in the admission of hearsay

evidence but that "this flexibility does not go so far as to

justify administrative findings that are not based on evidence
having a rational probative force."

       ¶85    Folding     Furniture        (adopting      the    Consolidated        Edison

language) has been followed in Wisconsin since 1939.                            Gehin, 278

Wis. 2d 111, ¶56.         We adhere to Folding Furniture in the instant

case.

       ¶86    In   any    event,     the    Trempealeau         County    Environment      &

Land    Use    Committee       did   not    base    its      denial      of    AllEnergy's

application        for     a       conditional         use       permit        solely     on
uncorroborated hearsay.              Indeed, as we illustrate below, the

                                             37
                                                                      No.   2015AP491



record is replete with specific and substantial representations

of people describing their first-hand experiences with frac sand

mines and their opinions.

       ¶87    The Committee and the courts would be remiss to ignore

the words of concerned persons familiar with frac sand mining

and the environs.         Zoning is a matter of local concern, and many

of the people commenting at the hearing on AllEnergy's proposal

have either lived near a frac sand mine or will be living,

working,      and    recreating     alongside    the    proposed      mine.      The

language      of    the   Trempealeau   County       Zoning   Ordinance     clearly

anticipates         and   invites     public     opinion.          Thus,      public

expressions of support or opposition establish a valid basis——

that    is,   substantial     evidence——for      a    decision   on    AllEnergy's

application for a conditional use permit.33

       ¶88    The substantial evidence test is a significant hurdle

for AllEnergy to overcome because, in applying the test, this

       33
       Substantial evidence, defined similarly to the Wisconsin
definition, is used in case law of other jurisdictions.      See,
e.g., Ocean View Estates Homeowners Ass'n v. Montecito Water
Dist.,   116   Cal. App. 4th 396,   402  (2004)   (opinions   and
observations   about   aesthetics  can   constitute   substantial
evidence); State of Missouri ex rel. Karch v. Camden Co., 302
S.W.2d 754 (Mo. Ct. App. 2010) (lay witnesses' testimony that
increased boat traffic endangered public health or safety and
would destroy nature of area constituted substantial evidence);
City of Las Vegas v. Laughlin, 893 P.2d 383, 385 (Nev. 1995)
(public concerns over increased traffic where children walk to
school and preserving residential nature of neighborhood
constituted substantial evidence); Bellsouth Mobility v. Miami-
Dade Cty., 153 F. Supp. 2d 1345, 1354 (S.D. Fla. 2001) (decision
on proposed cellular facility based on residents' aesthetic
concerns was based on substantial evidence).


                                        38
                                                               No.    2015AP491



court is deferential to the decision of the Trempealeau County

Environment & Land Use Committee.34            Certiorari review accords

the decision of the local governmental entity a presumption of

"correctness and validity."35

     ¶89   Finally, in applying the substantial evidence test on

certiorari   review,   a   court    does     not    reweigh   the    evidence.

Roberts v. Manitowoc Cty. Bd. of Adjustment, 2006 WI App 169,

¶32, 295 Wis. 2d 522, 721 N.W.2d 499.              Rather, we consider only

whether the Trempealeau County Environment & Land Use Committee

made a reasonable decision based on the evidence before it.36               In

making this determination,         we    may look to the whole record.

"[A] reviewing court should consider the context of the evidence

when determining whether it supports a municipality's action."

Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50,

¶45, 362 Wis. 2d 290, 865 N.W.2d 162.




     34
       See Clark v. Waupaca Cty. Bd. of Adjustment, 186
Wis. 2d 300, 305, 519 N.W.2d 782 (1993) (citing Van Ermen v.
DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978) ("As the
substantial evidence test is highly deferential to the board's
findings, we may not substitute our view of the evidence for
that of the board when reviewing the sufficiency of the evidence
on certiorari.")).
     35
       Kapischke v. Cty. of Walworth, 226 Wis. 2d 320, 328, 595
N.W.2d 42 (Ct. App. 1999).
     36
       Roberts v. Manitowoc Cty. Bd. of Adjustment, 2006 WI App
169, ¶28, 295 Wis. 2d 522, 721 N.W.2d 499 ("[I]t is not
'substantial concerns' that will overcome the Board's decision,
but rather the absence of substantial supporting evidence.").


                                        39
                                                                                       No.     2015AP491



       ¶90        The context in which we consider the evidence in the

instant case is the location and nature of the proposed non-

metallic          mineral        mine,       the    applicable            provisions           of     the

Trempealeau          County      ordinance,         and      the    record       of     the    hearing

before the Trempealeau County Environment & Land Use Committee.

       ¶91        The   proposed         mine      area      was     to    be     located        in   an

Exclusive         Agriculture          (EA-2)      district.              Non-metallic          mineral

mining, including industrial frac sand mining, is a conditional

use   in      EA-2      districts.           Trempealeau           County       Zoning        Ordinance

§ 13.01.          "Conditional uses are for those particular uses that a

community recognizes as desirable or necessary but which the

community will sanction only in a controlled manner."                                          Town of

Rhine        v.    Bizzell,           2008    WI    76,       ¶20,        311    Wis. 2d 1,           751

N.W.2d 780.               The      Trempealeau          County       Board        of     Supervisors

concluded that non-metallic mineral mines may be desirable in

EA-2 districts, but only if the applicant for a conditional use

permit demonstrates that it will meet the standards contained in

the County's ordinance.                  See ¶¶39-45, supra.
       ¶92        Under      the      provision         in     the        ordinance           governing

conditional uses, the Trempealeau County Environment & Land Use

Committee has to determine that AllEnergy's proposed mine "will

not     be    contrary          to     the    public         interest       and        will    not    be

detrimental to or injurious to the public health, public safety,

or    character         of      the    surrounding        area."           Trempealeau           County

Zoning Ordinance § 10.04(5)(a).                      The Trempealeau County Board of

Supervisors set forth several factors to guide the Committee's
inquiry into the public health, public safety, and character of
                                                   40
                                                                         No.      2015AP491



the    surrounding         area.      Trempealeau         County    Zoning      Ordinance

§ 10.06(6).         See ¶39, supra.

       ¶93    Because AllEnergy applied for a conditional use permit

to open and operate a non-metallic mineral mine, it also had to

satisfy      the      standards       the        Trempealeau       County       Board    of

Supervisors         established       for        non-metallic       mineral       mining,

including the wise use of natural resources, aesthetics, the

market value of land, and the legitimate interests of properties

in    the    vicinity.         See    Trempealeau         County    Zoning      Ordinance

Chapter 13 (Non-metallic Mining); ¶¶43-45, supra.

       ¶94    Having set forth the substantial evidence test and the

provisions of the county ordinance governing the standards and

factors      that    the    Trempealeau         County    Environment       &   Land    Use

Committee     must     consider,      we    examine      the   record    to     determine

whether substantial evidence exists in the record to support the

Committee's denial of AllEnergy's application for a conditional

use permit.

       ¶95    AllEnergy      has     the    burden    of    proof     (persuasion)       to
demonstrate satisfaction of the criteria for a conditional use

permit.      Trempealeau County Zoning Ordinance § 10.04(5)(c).                         The

Trempealeau County Environment & Land Use Committee is directed

to    deny   an     application      for    a    conditional    use     permit    if    the

application does not meet any of the conditional use or non-

metallic mineral mining standards.                       Trempealeau County Zoning




                                                41
                                                                  No.   2015AP491



Ordinance § 10.04(5)(c).37       If substantial evidence supports any

of the Committee's reasons for denying AllEnergy's application

pursuant to the criteria in the ordinance, the court will affirm

the   Committee's      decision.38       We    conclude    that    substantial

evidence supports the reasons expressed by the members of the

Committee for denying AllEnergy's application for a conditional

use permit.

      ¶96   The court of appeals aptly synthesized the Trempealeau

County Environment & Land Use Committee's reasons for denying

AllEnergy's    application    for    a     conditional    use   permit.      The

Committee     denied    AllEnergy's      application      for   four    primary

reasons:

      (1) AllEnergy's plan was "rushed," "incomplete," and
      had been modified between the time of the plan's
      preliminary review and presentation at the public
      hearing;

      (2) The proposed mine raises environmental concerns;

      (3) The proposed mine would change the landscape and
      would   have   adverse   effects   on  wildlife   and
      recreational opportunities available to residents and
      tourists; and
      37
       "At all times the burden of proof to demonstrate
satisfaction of these criteria remains with the applicant." See
also Delta Biological, 160 Wis. 2d at 910-12 ("The burden of
proof at all times remains with the applicant.").
      38
       Clark v. Waupaca Cty. Bd. of Adjustment, 186 Wis. 2d 300,
304, 519 N.W.2d 782 (Ct. App. 1994) ("[I]f we conclude that any
one of the board's reasons for denying the variances at issue
passes certiorari review, we affirm without commenting on the
board's other reasons."); see also Trempealeau County Zoning
Ordinance § 10.04(5) (the Committee may deny the application if
it does not satisfy any of the ordinance's criteria).


                                      42
                                                                     No.   2015AP491


      (4) The proposed mine raised health concerns and would
      result in changes in local culture and conditions.
      ¶97    The    court    of   appeals     reviewed    whether      substantial

evidence supports the first reason for denying the permit.                       We

do not.      We look to the other primary reasons, summarized above,

beginning with whether substantial evidence supports denying the

application on the ground that the project raised environmental

concerns,     including     the   condition      of   Trout   Run    Creek,    water

quality, flooding, and wetlands.

      ¶98    Marlys Kolstad opined that the proposed mine on the

banks of Trout Run Creek would endanger this Class II trout

stream and tributary of the Trempealeau River.                       She explained

that a 2014 report39 noted that the stream was on the verge of no

longer being able to sustain healthy populations of trout.                      The

Creek's     impairment      was   caused    by   "run-off     from    uplands    and

barnyards, [which] continue[s] to degrade habitat conditions,"

and   with    the    "external     draining      associated    with     frac    sand

mining, sediment can be carried into the creek causing further

damage to the health of this trout stream."
      ¶99    Building the proposed mine on wetlands next to Trout

Run Creek worried Noah Slaby, an Arcadia resident with two young

children and two properties bordering the proposed site of the

mine:

      Of all the possible negative effects of this project,
      the location of the rail spur and processing facility

      39
       The reference is to a publicly available publication of
the Wisconsin Department of Natural Resources.


                                       43
                                                                            No.     2015AP491


       is the most disturbing with its close proximity to a
       registered trout stream, river, and wetland.      This
       river bottom is also very prone to flooding and with
       my own experience with farming and pasturing cattle in
       this low lying area, less than a mile away[,] I can't
       imagine trying to control piles of sand, overburden
       and containment ponds when such common flooding
       occurs. . . . [W]ater   quality  is   dependent   upon
       wetlands to purify the water we drink and to filter
       out impurities that exist in our water from field run-
       off and other human pollutants.
       ¶100 Concern       about     the     proposed      mine's        potential           to

aggravate flooding in a flood-prone area was repeated time and

time      again    to   the    Committee.        For    instance,      Henry        Schultz

opposed allowing a mine "whose process and loading facilities

are to be located within a flood prone area.                         [Because] [h]igh

water won't be an unusual occurrence; it will be a recurrent

problem."

       ¶101 Indeed, Pat and Mary Slaby, who own a farm a mile

downstream from the site of the proposed mine, reiterated the

flooding concern in an e-mail that was read into the record:

"This past year alone the river bridge crossing had been closed

on   at    least    three      different    occasions . . . .          We         have    been
battling high water in our fields, roads, and basements and each

year it seems to get worse."                According to the Slabys, filling

in   these    upstream        wetlands   would    be    akin    to    "giving        up    our

greatest asset on battling flood water."

       ¶102 Kathy Lockington explained that a neighboring mine's

development has caused numerous water quality problems.                                   For

example, since the sand mine was built, she has spent $550 on
water      quality       testing     that       looks     for        both         dust     and


                                           44
                                                                              No.     2015AP491



polyacrylamides (one of the chemicals used in frac sand mining).

She explained:       "Our water softener has sand.                      The guy came and

said you have sand in your filter.                   I have drawn out water and

if you set it in a white bucket, the sand is in there."

       ¶103 Clearly, the Trempealeau County Environment & Land Use

Committee had substantial evidence on which to conclude that the

proposed mine raises environmental concerns and would have an

adverse impact upon "surface water drainage, water quality and

supply," factors the Trempealeau Zoning Ordinance required the

Committee to consider.

       ¶104 Turning to the effect of the mine on the landscape,

wildlife, and recreational opportunities, Abby Johnson's e-mail

read into the record stated that wetlands are "very important

ecosystems    that        need    protection        from      developments."               The

wetlands were described as seasonal home to "[v]arious species

of    waterfowl . . . as         their    breeding      ground."          "A        rail   spur

would decrease the livability and functionality of these unique

ecosystems    that        are     important       for      maintaining          a     diverse
population of waterfowl and plant species."

       ¶105 The record also demonstrates that placing a sprawling,

550-acre frac sand mine among Trempealeau County's rolling hills

would change the landscape.               The Trempealeau County Environment

and Land Use Committee had sufficient evidence to conclude that

the    project     would         be     "detrimental         to    or     injurious         to

the . . . character of the surrounding area," and would have an

adverse   effect     on    "aesthetics,          including        but   not     limited     to
scenic    beauty   and      the       conservation      of    natural      resources        of
                                            45
                                                                   No.    2015AP491



outstanding quality or uniqueness."                  Trempealeau County Zoning

Ordinance §§ 10.04(5)(a), 13.03(3)(a)(5).

       ¶106 Aesthetic concerns, that is, changes to the landscape,

were raised repeatedly by members of the public.40                       Duane and

Theresa     Matelski    reported    that      they   "marvel   everyday    at   the

breathless beauty in the ridges and valleys that make up our

County.        It saddens us greatly that this unique beauty is so

quickly disappearing, and the eyesore of yet another mine dots

what was once a beautiful vista here in Trempealeau County."

       ¶107 Henry Schultz noted the aesthetic degradation inherent

to the project:        AllEnergy's plan called for "extract[ing] sand

from several sites over time that are not connected except by a

network of conveyors that greatly expands the footprint of the

whole operation . . . sprawling over the landscape."

       ¶108 Noah Slaby stated:          "This driftless area has brought

people here to visit and live.               What incentive do young families

have to stay in this area when the very values and landscape

that    they    love   continue    to   be    compromised?"      He   noted     that
AllEnergy's representative even "commented on what a beautiful




       40
       See VoiceStream Minneapolis, Inc. v. St. Croix Cty., 342
F.3d 818, 831 (7th Cir. 2003) ("Indeed, every circuit to
consider the issue [of telecommunications siting] has determined
that aesthetics may constitute a valid basis for denial of a
wireless permit if substantial evidence of the visual impact of
the tower was before the board.").        See also Village of
Menomonee Falls v. DNR, 140 Wis. 2d 579, 607, 412 N.W.2d 505
(Ct. App. 1987).


                                         46
                                                                           No.    2015AP491



area this is, but yet he is here to change the topography of the

land."

    ¶109 To some residents, the proposed mine would result in

changes    in     local       culture      and    conditions.        The    mine    would

eliminate       their     pastoral         lifestyles.        For    example,       Diane

Waniorek's letter read into the record expressed her concern

that she "will no longer be able to maintain the farm that has

been in [her] family for over 100 years."                         She explained that

"[h]aving a sand mine so close to my home will decrease the

property       value    and    quality      of    life . . . [and]     may       force    my

family    to    abandon       land    on   which    [it]    has    lived    for    over   a

century."

    ¶110 Clearly, the Trempealeau County Environment & Land Use

Committee had substantial evidence in the record to support its

conclusion that the proposed mine would result in changes in

local culture and aesthetics.

    ¶111 Finally, many people who lived near existing frac sand

mines testified about health problems caused by sand and dust.
    ¶112 Bobbi          and    Richard      Halvorsen's     e-mail    read       into    the

record described problems that their family faced from the dust

caused by a frac sand mine.                  They eventually had to move away

from the mine because their daughter had                          "asthma which grew

progressively      worse,"       Bobbi      Halvorsen      "lived   with     a    constant

headache," and their "five year old [had] continuing problems

with allergies. . . ."               All of these health problems disappeared

once the family moved away from the mine.


                                             47
                                                                         No.     2015AP491



      ¶113 Lois       Taylor,    a    registered     nurse,       reiterated          these

health concerns in an e-mail that was read into the record at

the hearing.      She stated that she believes "there needs to be a

land use impact study focusing on health risks related to air

and   water    quality . . . ."          Sherie     Sacia,    a        health    worker,

expressed concern in an e-mail read into the record that the

health impacts of frac sand mining are unknown and that it is

"[b]etter to slow the process down until we are sure of any

health impacts.        All of our famil[ies'] health depends on you."

      ¶114 Once again, health concerns——ranging from anecdotal to

professionally        based——were      substantial    evidence          on     which    the

Trempealeau County Environment & Land Use Committee could base

its   denial     of    AllEnergy's      application.          The       Committee       is

required by the ordinance to analyze a proposal for non-metallic

mineral mining in light of the "impacts . . . on the general

health, safety and welfare of the public."                    Trempealeau County

Zoning Ordinance § 13.01.

      ¶115 The        Trempealeau      County      Environment          &      Land     Use
Committee's decision must be upheld if any reason set forth in

the ordinance for denying the permit is supported by substantial

evidence.      Surely, a reasonable person could conclude that the

public   comments        at     the    hearing     were    relevant,           probative

evidence,      providing       substantial      evidence     in    the       record      to

support the Committee's decision to deny AllEnergy's application

because the proposed mine raises environmental concerns, changes

the   landscape,       would    have    adverse    effects        on    wildlife       and


                                         48
                                                              No.    2015AP491



recreational   opportunities,     would   result    in   changes    in    local

culture and aesthetics, and raises public health concerns.

    ¶116 AllEnergy contends, however, that its experts had an

adequate   response   to   each    and    every    one   of   the   concerns

expressed by the members of the Trempealeau County Environment &

Land Use Committee who voted against the application.

    ¶117 AllEnergy's arguments amount to asking this court to

reweigh the evidence.      Reweighing the evidence is not part of

the substantial evidence test or the role of this court.41                  The

Committee need not have accepted an expert's testimony.                  It had

the discretion to weigh the expert's testimony against other

evidence in the record.      Expert testimony, for example, cannot

allay aesthetic concerns raised by a large open mine site in a

beautiful part of the state.

    ¶118 On review of the record, we conclude that substantial

evidence exists to support the Trempealeau County Environment &

Land Use Committee's decision to deny AllEnergy's application

for a conditional use permit.
                                    IV

    41
       For example, AllEnergy argues that its expert testimony
rebutted    public    comments    regarding   runoff    concerns.
"AllEnergy's ecologist testified that the project would minimize
and improve 'the current conditions by controlling runoff and
storm water through construction of storm water retention
basin[s]   and  infiltration   basins   as  well."     Brief   of
Petitioners-Appellants-Petitioners (AllEnergy) at 38.         The
Trempealeau County Environment and Land Use Committee apparently
was not persuaded by AllEnergy's expert.          The Committee,
instead, opted to give more weight to the reports of members of
the public who lived near the proposed mine site.


                                    49
                                                                               No.     2015AP491



       ¶119 Finally, we address AllEnergy's request that the court

"adopt      a   new    doctrine      that    where      a    conditional         use    permit

applicant has shown that all conditions and standards, both by

ordinance and as devised by the zoning committee, have been or

will be met, the applicant is entitled to the issuance of the

permit."        As we explained previously, this request is based on

AllEnergy's assertion that AllEnergy satisfied all the specific

conditions in the ordinance as a matter of law and cannot be

required        to    satisfy      subjective,       generalized           conditions       and

standards in the ordinance.

       ¶120 Quoting       Rathkopf's        The   Law       of    Zoning    and      Planning,

AllEnergy proposes the following rule: "If the administrative

body finds compliance with the standards or requisites set forth

in the ordinance, the right to the exception exists, subject to

such    specific       safeguarding         conditions           which   the     agency     may

impose by reason of the nature, location, and incidents of the

particular use."42

       ¶121 AllEnergy argues that other states follow this rule,
but    provides       very      little      justification          for     our       discarding

precedent        beyond      the    following        cursory         statement:            "The

rationale for recognition of the right has been that a decision

to deny a CUP [conditional use permit] is arbitrary where the

applicant has met the ordinance standards and where conditions



       42
       Brief of Petitioners-Appellants-Petitioners (AllEnergy)
at 45 (quoting Rathkopf § 61:37 at 61-99) (emphasis added).


                                             50
                                                                        No.   2015AP491



can   be     adopted     to     address     additional       potentially-adverse

impacts."43

      ¶122 We      discussed       AllEnergy's        "entitlement"           argument

previously in our discussion of whether the Trempealeau County

Environment & Land Use Committee kept within its jurisdiction in

denying AllEnergy's application for a conditional use permit.

We declined to adopt AllEnergy's argument.                    See Part II, ¶¶50-

54, supra.

      ¶123 Less than a decade ago, the court in Town of Rhine v.

Bizzell, 2008 WI 76, 311 Wis. 2d 1, 751 N.W.2d 780, rejected——on

the merits——a nearly identical rule as the one AllEnergy urges

in the instant case.           In Bizzell, 311 Wis. 2d 1, ¶56, the court

concluded that the entitlement argument was "without merit."

      ¶124 In elucidating the difference between permitted uses

and conditional uses, the Bizzell court explained that "[e]ven

though     conditional    uses     may    be     authorized       pursuant     to   the

ordinance,      that    does    not     render    them     uses    as    of    right."

Bizzell,     311   Wis. 2d 1,     ¶56    (citing    Gail    Easley,      Conditional
Uses: Using Discretion, Hoping for Certainty, American Planning

Association Zoning Practice, May 2006, at 8).44                          Rather, the

      43
           Brief   of   Petitioners-Appellants-Petitioners               (AllEnergy)
at 48.
      44
           See also Bizzell, 311 Wis. 2d 1, ¶59:

      [W]hile   discussing rules   that  generally  govern
      conditional uses, Anderson's American Law of Zoning
      states, '[t]he designation of a use in a zoning
      district as a conditional use does not constitute an
      authorization or assurance that such use will be
                                                    (continued)
                                          51
                                                                            No.    2015AP491



Bizzell court further explicated that "[c]onditional uses are

for    those     particular      uses    that       a   community          recognizes       as

desirable or necessary but which the community will sanction

only   in   a    controlled      manner."           Bizzell,       311   Wis. 2d 1,        ¶20

(citing State ex rel. Skelly Oil Co. v. Common Council, City of

Deerfield, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973)).                              "[U]ses

subject     to    a   conditional       use    permit        are    necessary        to    the

community, but because they often represent uses that may be

problematic,       their   development         is    best    governed       more     closely

rather than as of right."            Bizzell, 311 Wis. 2d 1, ¶24.                    Whether

a conditional use can be sanctioned depends on whether the use

meets the criteria set forth in the governing ordinance.

       ¶125 Looking to the language of the Town of Rhine ordinance

governing        conditional     uses    in     Bizzell,           the     Bizzell        court

concluded that the Town of Rhine ordinance's language in and of

itself foreclosed an entitlement argument.                          The standards for

"obtaining        a    conditional       use        permit        [were]     subject        to

significant interpretation."             Bizzell, 311 Wis. 2d 1, ¶58.
       ¶126 For       example,    the    ordinance           at     issue     in     Bizzell

directed the zoning board to consider whether a conditional use

permit would "preserve natural growth and cover and promote the

natural beauty of the township."                    Bizzell, 311 Wis. 2d 1, ¶58.

This standard, and others like it, were "simply not specific

       approved.' 5 Alan C. Weinsten, Anderson's American Law
       of Zoning, § 34.23, at 573 (4th ed. 1997).       While
       perhaps not dispositive, this assertion casts doubt on
       the Town of Rhine's entitlement argument.


                                          52
                                                                               No.    2015AP491



enough that one can reasonably say that any use as of right

exists . . . ."      Bizzell, 311 Wis. 2d 1, ¶58.

    ¶127 Additionally, nothing in the Bizzell ordinance stated

that "[i]f all requirements are met, the conditional use permit

shall be granted."         Bizzell, 311 Wis. 2d 1, ¶59.

    ¶128 AllEnergy         faces      the       same     roadblock        in   the    instant

case.   The Trempealeau County ordinance uses language similar to

that in Bizzell to set forth factors for the Trempealeau County

Environment    &    Land      Use    Committee           to    consider.        See,     e.g.,

Trempealeau County Zoning Ordinance § 10.04(5)(b)15. ("adversely

affect[s] the natural beauty"), § 13.01 ("wise use of natural

resources").        No   language         in       the   Trempealeau        County     Zoning

Ordinance   guarantees        that    a     conditional             use   permit     shall   be

granted if all requirements are met.

    ¶129 AllEnergy has failed to provide a compelling reason

for this court to depart from long-standing precedent.                               We shall

therefore     adhere     to     stare       decisis           and    reaffirm        Bizzell's

rejection of AllEnergy's "entitlement" approach to conditional
use permits.

                                               V

    ¶130 In conclusion, we affirm the decision of the court of

appeals.    On certiorari review, we accord the decision of the

Trempealeau     County        Environment            &        Land    Use      Committee       a

presumption    of   validity        and     correctness.              AllEnergy       has    not

successfully rebutted that presumption.                         The Trempealeau County

Environment & Land Use Committee kept within its jurisdiction in
denying AllEnergy's application for a conditional use permit.
                                               53
                                                                        No.     2015AP491



It relied on standards that the Trempealeau County Board of

Supervisors      adopted   and    explicitly       directed   the    Committee          to

consider.     The Committee's denial of AllEnergy's application was

based on substantial evidence in the record.

      ¶131 Finally, we reject AllEnergy's entitlement approach to

conditional use permits.            This approach has no basis in our

precedent or the language of the Trempealeau County ordinance;

it   has   been    rejected      previously    by    the    court.            Without   a

compelling reason, and none has been given, the court will not

overturn settled law.

      ¶132 For the reasons set forth, we affirm the decision of

the court of appeals.

      By   the    Court.—The     decision     of    the    court   of     appeals       is

affirmed.




                                       54
                                                                         No.    2015AP491.akz


      ¶133 ANNETTE         KINGSLAND       ZIEGLER,        J.      (concurring).             I

respectfully      concur       in   the   mandate.          In    my     view,    the   lead

opinion     and    the     dissent        have    made      this        case     much   more

complicated and potentially more far-reaching in effect than it

should be.        This case can and should be decided narrowly: ours

is a certiorari review.

      ¶134 Our review in this case is limited.                             On certiorari

review we examine:

      (1) whether the [Trempealeau County Environment & Land
      Use Committee ("the Committee")] kept within its
      jurisdiction; (2) whether it proceeded on a correct
      theory of law; (3) whether its action was arbitrary,
      oppressive, or unreasonable and represented its will
      and not its judgment; and (4) whether the evidence was
      such that it might reasonably make the order or
      determination in question.
Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50,

¶41, 362 Wis. 2d 290, 865 N.W.2d 162 (quoting Ottman v. Town of

Primrose, 2011 WI 18, ¶35, 332 Wis. 2d 3, 796 N.W.2d 411).

      ¶135 Moreover, our review in this case must be deferential.

The decision of the Committee "is entitled to a presumption of

correctness and validity."                Sills v. Walworth Cty. Land Mgmt.

Comm., 2002 WI App 111, ¶6, 254 Wis. 2d 538, 648 N.W.2d 878.

      ¶136 I      cannot       conclude,     given        these    controlling          legal

standards,     that      the     Committee's      decision         is    invalid.         See

Ottman, 332 Wis. 2d 3, ¶34 ("Certiorari is a mechanism by which

a   court   may    test    the      validity     of   a    decision       rendered      by   a

municipality,       an      administrative            agency,       or     an      inferior

tribunal.").       I agree with the lead opinion that the Committee's
decision    survives       the      specific     challenges        made    by     AllEnergy

                                            1
                                                               No.    2015AP491.akz


Corporation    and     AllEnergy    Silica,    Arcadia,    LLC   ("AllEnergy")

under this framework.          That is, I agree that the Committee kept

within its jurisdiction and that the evidence was such that it

might     reasonably    have    made     the   determination     in      question.

Although AllEnergy was able to complete its application shortly

before a moratorium on such projects went into effect, as the

court of appeals explained and as the lead opinion reiterates,

legitimate     environmental       and   health    concerns,     among    others,

supported    the   Committee's      decision      to   nevertheless      deny   the

permit.      The disposition of this case is appropriate when one

recognizes that decisions of the type made by the Committee

involve "local concerns" best handled at the local level.                       See

id., ¶51.1

     ¶137 Unfortunately, the lead opinion examines a number of

matters not necessary to this case and is not written narrowly


     1
       The dissent suggests it is improper to state that the
disposition of this case is in some way tied to the fact that
this appeal involves local decision-making.    The dissent fails
to recognize that the correct disposition of this case depends
largely on the limited and deferential nature of our certiorari
review——a standard of review applied in part because we pass
upon the decision of a local governmental entity.          It is
recognized, for example, that "[a] certiorari court may not
substitute   its  view   of  the   evidence  for  that   of  the
municipality." Ottman v. Town of Primrose, 2011 WI 18, ¶53, 332
Wis. 2d 3, 796 N.W.2d 411.       I of course agree that the
Committee, like any other governmental unit, must conduct itself
according to the law.   But no one disputes, for instance, that
the Committee "proceeded on a correct theory of law"; that prong
of certiorari review was not invoked on this appeal.      To say
that the local nature of the issues in this case bears upon the
outcome is consistent with our precedent and thus upholds the
rule of law rather than thwarts it.


                                         2
                                                                    No.   2015AP491.akz


enough for me to join it.             For example, the lead opinion engages

in    a   discussion     of     the     constitutionality          of     certain    of

Trempealeau       County's     ordinances,       in   disregard      of    the    basic

judicial      principle        that      courts       do     not        adjudge     the

constitutionality of legislation unless it is necessary to do

so.    See, e.g., Cty. of Milwaukee v. Williams, 2007 WI 69, ¶63,

301 Wis. 2d 134, 732 N.W.2d 770 ("[I]t is fundamental that a

court should not reach a constitutional question unless it is

essential to the determination of the case before it.").                          It is

most certainly not necessary to reach a constitutional question

on this certiorari review.

      ¶138 Indeed, one would think that if the lead opinion's

constitutional detour were necessary to our decision, the word

"constitution" might appear somewhere in AllEnergy's briefing.

It does not.       That word does appear, however, in the Committee's

briefing, where it explains that "of course, AllEnergy has made

no    argument     in   this     case     that     the     Zoning       Ordinance    is

unconstitutional."           And even if AllEnergy were attempting to

sneak a constitutional argument in through the back door, I fail

to see why its gambit should be rewarded.                    See, e.g., Cemetery

Servs.,    Inc.    v.   Wis.    Dep't    of   Regulation      &     Licensing,      221

Wis. 2d 817, 831, 586 N.W.2d 191 (Ct. App. 1998) ("For us to

address    undeveloped       constitutional       claims,     we    would    have    to

analyze them, develop them, and then decide them.                           We cannot

serve as both advocate and court.             For this reason, we generally

choose not to decide issues that are not adequately developed by
the parties in their briefs.").                  Little more need be said to

                                          3
                                                                               No.    2015AP491.akz


illustrate the gratuitousness of the lead opinion's discussion

in this regard.

       ¶139 I also part ways with the lead opinion's consideration

of AllEnergy's request that this court "adopt a new doctrine"

that a conditional use permit applicant has a "right to the

permit if the applicant shows that ordinance conditions have

been, or will be met and if concerns of potentially-adverse

impacts   can     be    addressed         by    imposing          additional         conditions."

This   issue,     at    least,       is    properly          before       the     court.        The

request, however, comprising the last few pages of AllEnergy's

brief,    turns    out       to    be   moot.          The        Committee      responded       to

AllEnergy's argument in part by stating that the law already

required that "[i]f an applicant is able to unilaterally satisfy

all requirements and considerations of the ordinance, and no

substantial evidence is offered in opposition, for all practical

purposes the body would be required to grant the permit," but

added that AllEnergy had not established that it had met this

standard.        Consequently, the question boiled down to whether

AllEnergy's permit application was properly denied.                                      And, as

discussed, the Committee's decision that AllEnergy's application

should be denied under local law is valid.                                Consequently, the

court need not and should not weigh in on the necessity or

propriety of adoption of AllEnergy's proposed rule in this case.

       ¶140 In    sum,       our     review      in        this    case    is        limited    and

deferential,      and    I    agree       that       the    decision      of    the     court    of

appeals     should      be        affirmed.           Of     course,       the        appropriate
legislative      body    is       always       free    to     amend       these       ordinances.

                                                 4
                                                         No.   2015AP491.akz


However,   in    the   case   now   before   us,   the   presumption     of

correctness and validity of the Committee's decision has not

been overcome.    That is where our analysis should end.

    ¶141 For the foregoing reasons, I respectfully concur in

the mandate.

    ¶142 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins in this concurrence.




                                    5
                                                                         No.    2015AP491.dk


      ¶143 DANIEL KELLY, J.             (dissenting).             We are "a government

of laws, and not of men."1               Unless one is trying to obtain a

conditional use permit from a municipality's land-use committee,

in   which   case      the   opposite        is    true.      A    government     of     laws

requires us to conform our actions to pre-existing standards

with discernible content.               A government of men requires us to

conform our actions to a governing authority's ad hoc wishes.

Because our decision today condones the latter, I respectfully

dissent.

      ¶144 AllEnergy Corporation and AllEnergy Silica, Arcadia,

LLC (collectively, "AllEnergy") have an interest in a parcel of

property     in   an     area   zoned   to        allow    non-ferrous     mining       as    a

conditional use (I will refer to this property as the AllEnergy

Property2).       AllEnergy wishes to mine sand on that property, and

so (along with the title owners) filed a conditional use permit

application       with    the    Committee.            The    Committee        denied    the

application,       citing       the   various        concerns       discussed      in    the

court's opinion.

      ¶145 Our      obligation,         in        reviewing       this   case,     was       to

determine whether the Committee properly denied the application.

A municipal entity commits reversible error if it exceeds its

jurisdiction, incorrectly applies controlling legal principles,

      1
       J. Adams, 4 Life and Works of Johns Adams 99, 106 (1851)
(Novanglus Letter No. VII) (referring to the definition of a
"republic" as understood by Aristotle, Livy, and Harrington).
      2
       AllEnergy's application for a conditional use permit
identifies Gary   Haines,   Cortland  Farm   LLC, and Francis
Pronschinske as the title owners of the property.


                                              1
                                                                   No.    2015AP491.dk


acts arbitrarily by exercising its judgment instead of its will,

or bases its decision on insufficient evidence.                         Oneida Seven

Generations Corp. v. City of Green Bay, 2015 WI 50, ¶41, 362

Wis. 2d 290, 865 N.W.2d 162.

     ¶146 The Committee exceeded its jurisdiction when it took

upon itself the task of determining whether a sand mine, as a

general   proposition,      is     an   appropriate    use    of    the    AllEnergy

Property.    This      is   a    determination     already     answered      by   the

Trempealeau County Board, and the Committee had no authority to

second-guess the wisdom of its decision.                     The Committee also

acted arbitrarily by failing to apply appropriate pre-existing

standards   to   the    specific        proposal   contained       in    AllEnergy's

application.3

                                          I

     ¶147 The Committee exceeded its jurisdiction for the same

reason our opinion is in error today.               That is, we both failed

to account for what a County Board accomplishes when it includes

certain   conditional       uses    in    a   zoning   district.           Both   the

Committee and our opinion treat the conditional use as a piece

of unfinished zoning business, which the Committee may complete

when an owner applies for a permit.                But a conditional use is

not a loose end.       It is a determination that the identified use


     3
       This is not to say, however, that I believe the record is
sufficiently developed to conclude that the Committee should
have issued the conditional use permit.    Because the Committee
did not complete its assigned task, as I discuss below, the
proper course would be to remand the matter to the Committee for
further proceedings.


                                          2
                                                                       No.   2015AP491.dk


is compatible with the zoning district, and is subject only to

appropriate conditions to control for the potentially hazardous

aspects of the specific proposal under consideration.

       ¶148 Our error caused us to review the wrong question.                         We

(and the Committee) inquired into the general advisability of

operating a sand mine on the AllEnergy Property.                         Our duty was

to accept the County Board's determination that sand mining,

with all the incidents that necessarily accompany such a use, is

appropriate        on    that    property.         If   we     had    done   this,   our

attention would have been focused where it belongs, to wit, on

whether AllEnergy's specific proposal created such hazards that

they       could   not   be     controlled       even   with    the    imposition     of

appropriate conditions.4

                                             A

       ¶149 By      juxtaposing      "conditional            uses"    and    "permitted

uses," we can gain some useful insight into the essential nature

of the former.           That insight will, in turn, illuminate how the


       4
       The concurring opinion says the "disposition of this case
is appropriate when one recognizes that decisions of the type
made by the Committee involve 'local concerns' best handled at
the local level." Concurrence, ¶136. This is a category error.
The "localness" of the governmental body making the decisions
has absolutely nothing to say about whether it made them
correctly. The rule of law does not lose its grip as the scope
of the governmental body scales down.      The smallest unit of
government owes the same duty as the greatest:        To conduct
itself according to law.     We defer to a local government's
policy decisions because they are outside the remit of the
judiciary, but the legality of its decisions never is.     So to
suggest the disposition of this case has anything to do with the
level of government making the decision is to miscategorize the
nature of our inquiry.


                                             3
                                                                            No.    2015AP491.dk


Committee    improperly         took    to    itself       authority         to    address      a

question already answered by the County Board.

      ¶150 The chief characteristic of a permitted use is that it

is one to which an owner may put his property as a matter of

right.       Town       of   Rhine     v.    Bizzell,          2008   WI    76,     ¶19,    311

Wis. 2d 1,     751       N.W.2d 780         ("In    general,          zoning      ordinances

provide landowners with permitted uses, which allow a landowner

to use his or her land, in said manner, as of right.").                                 Thus,

for   example,      a    person      desiring       to    build       a    residence       in   a

residential      zoning       district       need    only       comply      with     whatever

parameters may exist in that district (such as density, building

size, setbacks, height, etc.).                So long as that zoning pertains,

and   the   proposed         development     does        not    exceed      the   district's

explicit limitations, the municipality may not deny a building

permit.5

      ¶151 This is not the case with "conditional uses."                                As we

have said before, a conditional use classification "allows a

property owner 'to put his property to a use which the ordinance

expressly permits when certain conditions [or standards] have

been met.'"         Id., ¶21 (brackets in original; emphasis added)

(quoting State ex rel. Skelly Oil Co. v. Common Council, City of

Delafield, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973)).                                Such a


      5
       "Permissible uses are by-right uses, i.e., the uses are
named in the zoning ordinance and a property owner has the right
to establish the use so long as it conforms to the standards and
criteria of the zoning ordinance."    Town of Rhine v. Bizzell,
2008 WI 76, ¶50, 311 Wis. 2d 1, 751 N.W.2d 780 (internal marks
omitted).


                                              4
                                                                               No.   2015AP491.dk


classification allows a municipality "to cope with situations

where      a     particular       use,    although         not    inherently     inconsistent

with       the       use   classification        of    a     particular      zone,    may     well

create special problems and hazards if allowed to develop and

locate as a matter of right in [a] particular zone."                                 Skelly Oil

Co.,       58        Wis. 2d at    701.          The    purpose         of   conditional      use

classifications, therefore, is to provide for "those particular

uses that a community recognizes as desirable or necessary but

which the community will sanction only in a controlled manner."

Bizzell,         311       Wis. 2d 1,     ¶20;    see      also     3   Edward   H.     Ziegler,

Rathkopf's The Law of Zoning and Planning § 61.1 at 61-3 (4th

ed.     1993)          (stating     the     purpose          of     the      conditional      use

classification is to provide "same-site-specific discretionary

review          of     proposed    uses     that       are       generally     deemed    to    be

presumptively compatible or desirable in a particular area or

zoning district.").               They are "necessary to the community, but

because they often represent uses that may be problematic, their

development is best governed more closely rather than as of

right."          Bizzell, 311 Wis. 2d 1, ¶24.6

       ¶152 From this we may distill that a conditional use is one

a municipality has determined is "desirable" or "necessary to

the community" and is not "inherently inconsistent with the use

classification of a particular zone . . . ."                              Id., ¶¶23-24.        But

       6
       "Current zoning journals also support the conclusion that
the common, accepted zoning practice is to provide permitted
uses as of right and then, in addition to permitted uses, the
ordinance may provide for conditional uses."       Bizzell, 311
Wis. 2d 1, ¶50.


                                                  5
                                                                                       No.      2015AP491.dk


it   is    also       one    that    "may       well          create      special           problems      and

hazards      if       allowed      to     develop         and          locate     as    a       matter    of

right . . . ."           Id., ¶23.             So a "conditional use" listing is a

declaration that "the community will sanction [it] only in a

controlled        manner."              Id.,    ¶20.              The     manner       in       which     the

community exercises its control is by allowing development to

proceed only "'when certain conditions [or standards] have been

met.'"       Id., ¶21 (quoting Skelly Oil Co., 58 Wis. 2d at 701)

(brackets in Bizzell).

       ¶153 This means, of course, that a property owner is not

entitled to a conditional use permit as a matter of right.                                                If

the use is dependent on satisfaction of "certain conditions or

standards," it necessarily follows that property owners have no

guarantee a permit will issue.                       We have previously said as much:

"'[T]he      designation            of    a    use        in       a    zoning     district          as     a

conditional           use     does       not     constitute               an    authorization              or

assurance     that          such    use       will       be       approved.'"           Bizzell,          311

Wis. 2d 1, ¶59 (quoting 5 Alan C. Weinstein, Anderson's American

Law of Zoning § 34.23, at 573 (4th ed. 1997)).

       ¶154 However,            just       because            a        property        owner       has     no

guarantee         a    permit       will       issue          does      not     mean        a    municipal

committee has free rein to deny an application.                                             One of these

propositions is not the negation of the other, and we have been

very      careful      not    to     say       so.        For          example,        in       Bizzell    we

considered whether a municipality could create a zoning district

in which there were no permitted uses, only conditional uses.
Mr. Bizzell asserted that there must be some use to which a

                                                     6
                                                                            No.    2015AP491.dk


person may put his property as a matter of right.                                See id., 311

Wis. 2d 1, ¶14.         The Town of Rhine responded that "conditional

uses are permitted uses because once the standards have been

satisfied a landowner is 'entitled' to the conditional use."

Id., ¶55.      We rejected that argument as lacking any merit.                              See

id., ¶¶55-56.       But we did so on the basis that "[p]ermitted uses

and conditional uses are different" in large part because there

is no absolute right to the latter.                          Id., ¶¶55-56 (citing S.

Kemble Fischer Realty Trust v. Bd. of Appeals of Concord, 402

N.E.2d 100, 103 (Mass. App. Ct. 1980) (stating that "[n]o one,

of course, has an absolute right to a special permit")).                               We did

not say a municipality could deny the application because it

does not believe the conditional use is appropriate for the

applicant's property.            We just affirmed the proposition that

there is never an absolute (that is, unconditional) right to a

permit.

       ¶155 And in       Edward Kraemer & Sons, Inc. v. Sauk County

Board of Adjustment, 183 Wis. 2d 1, 515 N.W.2d 256 (1994), we

said    the   court     of   appeals    was      mistaken           in   believing    that   a

"mineral extraction permit had to be granted and if conditions

were    necessary     to     ensure    compliance            with    the   ordinance,       the

Board was obligated to fashion them."                        Id. at 7.           But that was

in     the    context      of   determining            who     bears       the     burden    of

establishing      compliance          with       the    municipality's             identified

standards.      See id. at 16-17.             We did not say the municipality

could deny an application because the proposed use comprised the
essential attributes of a mining operation.

                                             7
                                                                             No.    2015AP491.dk


       ¶156 The          court       of   appeals       has      not     been        similarly

circumscribed.            In Delta Biological Resources, Inc. v. Board of

Zoning       Appeals      of    Milwaukee,      160    Wis. 2d 905,          467    N.W.2d 164

(Ct.       App.    1991),      the   appellant       asserted    that    "a        presumption

arises that the use serves the public interest from the fact

that the legislature permits it, and the special use[7] itself,

therefore, presumes a legislative determination that a public

need for the use exists."                    Id. at 911 (footnote added).                    From

this       Delta    Biological       argued     that    "because       the    legislature's

provision for a special use exception is a determination that

such use does not materially affect the area adversely, denial

is   proper        only     upon     proof    that     adverse    impact       upon     public

interest is greater than that which might be normally expected."

Id. at 912.

       ¶157 The court of appeals disagreed, stating "[w]e reject

Delta's argument because its linchpin, the presumption that the

conditional use serves the public interest, does not exist in

Wisconsin."          Id.        The court of appeals accurately identified

that argument as the linchpin in determining whether there are

circumstances in which a municipality must grant a conditional

use permit.         See id. at 911-12.              What it did not identify is any

authority          for    its      surprising       assertion     that        there     is    no

presumption that a conditional use serves the public interest.


       7
       "Special use" is synonymous with "conditional use." See,
e.g., Bizzell, 311 Wis. 2d 1, ¶20 ("ordinances may also provide
for conditional uses by virtue of a special use or conditional
use permit.").


                                                8
                                                                         No.    2015AP491.dk


Nor did it identify any rationale that would make it an accurate

description of the state of the law.

    ¶158 Our opinion today recognizes that AllEnergy and Delta

Biological's arguments share the same linchpin.                          After quoting

Delta    Biological's      authority-free        statement          of    the     law,     it

concludes    that     "our    precedent       dictates       that    no        presumption

exists that a conditional use is ipso facto consistent with the

public    interest    or     that    a   conditional     use    is       a     use    as   of

right . . . ."       Lead op., ¶55.        The latter part of the quote is

not material to the analysis because no one equates conditional

uses and uses as of right.               But whether a "conditional use is

ipso facto consistent with the public interest" is a question of

the greatest moment here.             Indeed, AllEnergy's case succeeds or

fails based on whether Delta Biological answered that question

correctly.

    ¶159 Delta Biological's answer is not correct.                              Bizzell——a

supreme    court     decision       considerably      more     recent          than   Delta

Biological——teaches that a conditional use is one a municipality

has determined is "desirable" or "necessary to the community,"

and is not "inherently inconsistent with the use classification

of a particular zone . . . ."                   See   Bizzell, 311 Wis. 2d 1,

¶¶23-24.     It also tells us that when a community identifies a

"conditional use" with a property, it is sanctioning that use so

long as it is done "in a controlled manner."                             See id., ¶20.

This description of conditional uses is entirely inconsistent

with the court of appeals' statement that "the presumption that
the conditional use serves the public interest[] does not exist

                                          9
                                                                        No.   2015AP491.dk


in Wisconsin."        See Delta Biological, 160 Wis. 2d at 912.                           We

should not assume that a municipality would "sanction" a use

that is contrary to the public interest.                         And the principle of

non-contradiction should prevent us from concluding that a use

that is "desirable" or "necessary to the community" can somehow

simultaneously not serve the public interest.

     ¶160 This places substantial limitations on the reasons a

municipality    can       give      for    denying    a    conditional    use     permit.

Because the types of uses identified as conditional uses are

"sanctioned,"       and       either      "desirable"       or    "necessary      to     the

community," an application for such a use may not be denied

because the owner proposes to engage in that type of use.                               That

is to say, if an ice-cream shop is a conditional use, a land-use

committee may not deny a permit because the committee's members

object to the owner selling ice-cream on his property.                                  Such

objections are in order when the municipality adopts (or amends)

its zoning ordinance and considers which conditional uses (if

any) to include in each of its zoning districts.                         Upon adding a

conditional use to a zoning district, the municipality rejects,

by   that    very    act,        the      argument     that      the   listed     use     is

incompatible with the district.                   See, e.g., People's Counsel v.

Mangione,     584    A.2d       1318,      1322-23        (Md. Ct. Spec. App.          1991)

(explaining    that       a   zoning       ordinance      providing    for    a   special

exception is a legislative predetermination that such special

exception,     subject         to      certain       guides      and   standards,         is

compatible with other uses identified for that zone); State ex
rel. Straatmann Enters., Inc. v. Cty. Of Franklin, 4 S.W.3d 641,

                                             10
                                                                           No.    2015AP491.dk


650 (Mo. Ct. App. 1999) (explaining that a conditional use is

one authorized by a local legislative body that, in the absence

of having met certain conditions, may otherwise be incompatible

with the location).

      ¶161 An application for a conditional use permit is not an

invitation to re-open that debate.                     A permit application is,

instead,     an     opportunity     to     determine            whether     the     specific

instantiation of the conditional use can be accomplished within

the standards identified by the zoning ordinance.                                 See, e.g.,

Matter     of     Cove    Pizza    v.    Hirshon,          61     A.D.2d     210,        212-13

(N.Y. App. Div. 1978) (where a special use ordinance allows for

certain    types     of   restaurants,         board       cannot     deny       application

because it objects to the allowed special use).                                   A land-use

committee,        therefore,      must   focus        on        the   owner's       specific

proposal     and    determine      whether       that       proposal        can     be    made

compatible with the zoning ordinance's standards.                                 See, e.g.,

id.; see also DeMaria v. Enfield Planning and Zoning Comm'n, 271

A.2d 105, 106-108 (where zoning ordinance provides for special

use and identifies requirements for obtaining such permit, board

cannot deny application because it does not like the esthetic

effect of the proposed apartment complex or because the board

does not believe the proposal presents a satisfactory image of

what apartments in the town should look like).

                                           B

      ¶162 Our decision today would look considerably different

if   we   had   taken     our   guidance       from    Bizzell        instead      of     Delta
Biological.         The   logic    behind       Bizzell         teaches      us    that    (as

                                           11
                                                                  No.    2015AP491.dk


relevant here) testimony related to a proposed use of property

has two distinct functional purposes depending on the stage of

the zoning process in which it is offered.                One stage relates to

a municipality's adoption or amendment of a zoning ordinance.

The other relates to the consideration of an owner's application

for a use permit.

    ¶163 When the Trempealeau County Board writes its zoning

code, or considers amendments, the testimony it needs, and is

appropriate to consider, is whether a type of use is compatible

with a designated zoning district.            This is the stage at which

the County has the greatest discretion in determining what may,

and may not, be allowed on various tracts of property.                     See Wis.

Stat. § 59.69(13) ("The powers granted in this section shall be

liberally     construed     in     favor     of     the     county       exercising

them . . . ."); see also Cohen v. Dane Cty. Bd. of Adjustment,

74 Wis. 2d 87, 90, 246 N.W.2d 112 (1976).                 It is also the stage

at which it is necessary to draw most deeply on the wisdom,

experience,       and    discretion     of        the     community       and    its

representatives.        The community's testimony plays a key role in

answering these land-use questions wisely.

    ¶164 Once      the    County    adopts    its       zoning   code,     however,

testimony about a proposed use has a narrower function.                          Its

purpose is to help the Committee determine whether the proposal

satisfies   the    parameters      already   adopted       by    the    Trempealeau

County Board.      And when the testimony relates to a "conditional

use," its function is to provide the information necessary to



                                      12
                                                                 No.   2015AP491.dk


determine what conditions to impose on the use.8                 In making this

determination, the Committee must interpret and apply the zoning

code with a bias towards the free use of property.                     See, e.g.,

Cohen, 74 Wis. 2d at 91 (zoning ordinances are to be construed

"in favor of the free use of private property.").

                                          1

       ¶165 Consequently, the zoning ordinance's terms inform the

Committee of both the scope of its discretion, as well as the

type       of   testimony    on   which   it   may   rely   in   considering    an

application        for   a   conditional       use   permit.     The    AllEnergy

Property bears the EA-2 zoning designation, which Trempealeau

County describes as follows:

       This district preserves class I, II and III soils and
       additional    irrigated   farmland   from   scattered
       residential developments that would threaten the
       future of agriculture in Trempealeau County.      The
       district is also established to preserve woodlands,
       wetlands, natural areas and the rural atmosphere of
       the County. . . .
Trempealeau County, Wis., Zoning Ordinance § 2.03(2).                     Chapter

13 of Trempealeau County's zoning ordinance makes non-ferrous

mineral mining a conditional use in the EA-2 district:

       Non-metallic mining is a conditional use of land in
       the EA, EA-2, PA and TA districts.    In addition to
       taking   into  consideration the   general  criteria
       governing the granting of conditional use permits
       under Sec. 10.04, the County shall specifically

       8
       It is conceivable that there could be no set of conditions
sufficient to control the potential adverse impacts of a
specific instantiation of a conditional use.        However, the
Committee did not suggest that was the case, so this proposition
needs no further consideration here.


                                          13
                                                          No.   2015AP491.dk

     analyze non-metallic mineral mining proposals in light
     of the County's interest in providing for the wise use
     of the natural resources of the county, aesthetic
     implications of the siting of such a mine at a given
     location and the impacts of such a mining operation on
     the general health, safety and welfare of the public.
     Each application shall be judge on its own merits.
     Subject only to the standards set forth in this
     section and in the zoning ordinance as a whole, it is
     impossible to prescribe the criteria upon which such a
     permit may be granted in each and every case.
Trempealeau County, Wis., Zoning Ordinance § 13.01.9

     ¶166 Bizzell    says these zoning provisions establish that

the Trempealeau County Board has legislatively determined that

sand mining is not inherently inconsistent with the EA-2 zoning

district.   See id., 311 Wis. 2d 1, ¶23.         Bizzell also says we

must conclude from these provisions that sand mining is a type

of use sanctioned by the County Board and deemed desirable, or

necessary to the community, in this district.       See id., ¶24.

     ¶167 Presumably, when the members of the Trempealeau County

Board authorized non-ferrous mineral mining as a conditional use

of the AllEnergy Property, it knew at least the basics about the

type of activity it was designating as sanctioned and either

necessary   or   desirable.   I   trust   the   members   would    not   be

surprised to learn that sand mining will change the topography

of the property, alter the course of surface waters, create

dust, make the property unavailable for agricultural uses (at


     9
       I cite to Trempealeau County, Wis., Zoning Ordinance
§ 13.01 as it existed at the time AllEnergy filed its
conditional use application.   That zoning ordinance, however,
has since been amended.     All references to § 13.01 in this
dissent are to the version existing at the time AllEnergy filed
its application.


                                  14
                                                                               No.    2015AP491.dk


least     until        remediation         and       maybe    thereafter),             and       not

contribute to scenic beauty.

       ¶168     These are expected and necessary consequences of sand

mining, and are baked into the County Board's decision that sand

mining should nonetheless be allowed on the AllEnergy Property,

subject only to appropriate conditions.                        Just as a municipality

may    not    deny     a    conditional-use          application         for    an     ice-cream

parlor       because       the   owner    intends       to    have      ice-cream           on   the

premises,      the     Committee     may       not    deny    AllEnergy's            application

because       his      proposed       use        will       comprise          the      essential

characteristics of a sand mine.

       ¶169     The        people    of        Trempealeau          County           should      be

congratulated         on    their    interest         in,    and    concern          for,    their

community.         The testimony they offered was, for the most part,

relevant,      instructive,         and       trenchant.       Some       of    it,     however,

related       to    the     wisdom       of    the      Trempealeau           County     Board's

determination that sand mining is a sanctioned and desirable or

necessary use in AllEnergy's zoning district.

       ¶170 Thus, for instance, various community members objected

to AllEnergy's proposal because it would affect the landscape,

detract from scenic beauty, impact the conservation of natural

resources, or eliminate their pastoral lifestyle.                                    Members of

the Committee raised similar concerns.                        Committee member George

Brandt    rejected         AllEnergy's        application,         in    part,       because      of

"the    significant         change    to       the    landscape         and    to     the    local

cultural and social conditions."                        Committee member Ed Patzner



                                                15
                                                               No.   2015AP491.dk


frankly stated a sand mine is not compatible with this zoning

district:

       Well, I represent the Farm Service Agency and I'm for
       agriculture. Agriculture has a history of bringing
       stability and jobs to our local economy, where sand
       mines have a history of boom or bust on the local
       economy,   therefore    destroying   good   productive
       agricultural land is not a wise decision. We don't
       want to destroy our outdoor recreation potential, like
       hunting, biking and other activities that attract
       visitors, retirees and people that love scenic beauty
       who are close to work and live here.
Committee member Jeff Bawek was no less blunt in his conclusion
that   a   sand   mine   simply   does    not   belong   on    the    AllEnergy

Property:

       Based on information given as referenced and my own
       findings, along with public concerns given at this
       meeting, this siting does not seem to be in the best
       interest of our citizens nor in the best use of our
       natural resources of Trempealeau County . . . . Trout
       Run Creek and the close proximity to the Trempealeau
       River deem this site as poor.
       ¶171 All of this testimony, and the concerns raised by the

Committee members, appear to be well-founded and offered in good

faith.     But it is also all directed at a question they had no

authority    to   address.     Trempealeau      County   has    legislatively

disagreed with Mr. Bawek on whether a sand mine on the AllEnergy

Property is in the best interest of the community, or is a

"poor" site.      Also, we should presume the County was aware of

the relative economic benefits of mines and farms (as described

by Mr. Patzner).         But the County legislatively disagreed with

him as well.       So, too, with Mr. Brandt's concern about the
cultural and social implications of developing a mine on the

AllEnergy Property.       And the County surely knew, when it decided
                                     16
                                                                            No.      2015AP491.dk


that    a    mine    would    be     a    necessary       or    desirable        use    of    the

AllEnergy Property, that it would change the landscape, be less

attractive,         and     affect       natural       resources      and       recreational

activities.

       ¶172 The County knows a sand mine will do and be all these

things,      but    nonetheless          declared      them     unobjectionable         on    the

AllEnergy        Property.         So    although       the    testimony       and     concerns

described above are valid, they should have been raised when the

County was developing its zoning ordinance in the first place.

When, as here, the task is to apply the zoning decisions already

made    to   a     conditional       use    permit      application,           the    Committee

lacks authority to second-guess the County Board's legislative

decisions.

                                                 2

       ¶173 Whether          the        specific       attributes         of      AllEnergy's

proposed mining operation would comply with all the necessary

criteria upon which a permit may be conditioned is a question of

an altogether different nature.                      Here, the Committee's specific

task was to decide whether the imposition of an appropriate set

of     conditions      could       sufficiently          control     for       the     "special

problems and hazards" this type of use presents.                                See Bizzell,

311 Wis. 2d 1, ¶23; see also Halfway House v. City of Waukegan,

641     N.E.2d 1005         (Ill. App. Ct.             1994)      (city        could     impose

reasonable         conditions      such     as       limiting    halfway        house    to    32

residents); Council Rock Sch. Dist. v. Wrightstown Twp. Zoning

Hearing      Bd.,     709    A.2d 453        (Pa.       Commw.     Ct.     1998)       (special
exception uses may require imposition of "reasonable conditions

                                              17
                                                                             No.    2015AP491.dk


for the protection of the health, safety, and welfare of the

community    which        the   applicant       must     meet").            The    community's

concerns about AllEnergy's specific implementation of that use

are not only relevant, they are critical to the Committee's

deliberations over the permit application.

      ¶174 Although the community offered a wealth of information

relevant    to     this    task,       the    Committee    used        it    for    the       wrong

purpose. It should have used the testimony to determine what

specific standards AllEnergy would be required to satisfy before

obtaining a sand mining permit.                     Instead, the Committee used the

testimony     to     address       a     question       already        answered          by     the

Trempealeau County Board, to wit, whether it would be advisable

to operate a sand mine on the AllEnergy Property.                                   That is a

legislative      determination          already        settled    by        § 13.01      of     the

zoning code, and the County Board settled it in AllEnergy's

favor.

      ¶175 The mismatch between the community's testimony and the

question the Committee answered becomes incandescent upon review

of    the   Committee's           justification          for      denying          AllEnergy's

application.        Community members offered heartfelt and reasoned

input on the proposed mine's impact on nearby Trout Run Creek

and   associated      wetlands,         surface        water   drainage,           the    health

effects     of     wind-borne          dust,     the     potential          consequence         of

flooding    in     the     vicinity,         water     quality,    and       the     continued

viability     of    various        ecosystems.            As     the    court's          opinion

demonstrates,       each     of    these       topics    relates       to    standards          the



                                               18
                                                             No.   2015AP491.dk


zoning code requires the Committee to consider in ruling on

AllEnergy's application.

    ¶176 But    the   Committee     did   not    use   the    testimony     to

determine what conditions it might be necessary to impose on

AllEnergy's planned use.          It instead acted as though it was

determining,   in   the   first   instance,     whether   sand     mining   was

compatible with the AllEnergy Property.           Committee member Kathy

Zeglin, for instance, said she had

    numerous environmental concerns about the significant
    wetlands in the area, the river at this point
    historically was and is constantly changing it is very
    hard to plan anything on a long range basis. I'm very
    concerned with the water table in the area——it is very
    high.   I haven't been convinced that it will not be
    disturbed.
Committee member George Brandt expressed similar concerns:

    [T]he possibility of possible significant danger to
    ground water, by processes involved in mining and
    processing,   and   the    high   capacity   well . . . .
    [W]etland location is too close to sensitive water and
    wildlife resources and number 2 is the possibility of
    significant   damage    to   groundwater   by   processes
    involved in mining and high capacity well.
Committee member Ed Patzner noted "[t]here are health concerns
with mining so we need to protect our residents."                And finally,

Committee member Jeff Bawek observed that "[s]oil around and in

the site bring into question the potential for water problems."

    ¶177 Each of these concerns is entirely legitimate.                And if

the Committee had the authority to determine whether sand mining

should be listed as a conditional use in the zoning district

encompassing the AllEnergy Property, perhaps this would have led
them to say "no."     But that was not its duty, and in acting as


                                    19
                                                                             No.    2015AP491.dk


though it was, it exceeded its jurisdiction and usurped the

Trempealeau County Board's authority to answer that question.

                                                 II

      ¶178 There         is    some     disagreement         about      how       specific        an

ordinance governing issuance of conditional use permits must be

to prevent arbitrary decision-making.                        We have recognized that

they at least "must be sufficiently specific . . . to allow for

judicial review."              Bizzell, 311 Wis. 2d 1, ¶21 n.9 (citing 3

Kenneth H. Young, Anderson's American Law of Zoning § 21.09, at

709 (4th ed. 1996) (discussing the specificity of standards)).

An ordinance does not satisfy this requirement if it "'fails to

provide    suitable       standards        where      it   confers      on    a    board      [    ]

"unlimited discretion to condition the issuance of the permit on

the basis of such norms or standards as it may from time to time

arbitrarily       determine."'"            Bizzell,        311     Wis. 2d 1,          ¶21    n.9

(citing    3    Young     at    711).       Some      courts     strike       ordinances          as

insufficiently          specific      when       they      simply    require           that   the

conditional       use     be    in    the        "public     interest,"          promote      the

"general       welfare,"       or    are    "'consistent         with      the     purpose        or

intent of the zoning ordinance.'"                       Bizzell, 311 Wis. 2d 1, ¶21

n.9 (quoting Daniel R. Mandelker & Michael Allan Wolf, Land Use

Law   § 6.03,      at    6-6    (5th       ed.    2003)     (one     set      of    quotations

omitted); see, e.g., Clark v. Bd. of Appeals, 204 N.E.2d 434

(Mass.     1965)        (rejecting         zoning       ordinance       as       too     broad);

Fitanides v. Crowley, 467 A.2d 168 (Me. 1983) (finding portion

of zoning ordinance unconstitutional because it did not provide
the board with "specific guidelines that allow the board to

                                                 20
                                                                       No.      2015AP491.dk


determine what special characteristics of a proposed use render

it detrimental to the public health, safety or general welfare

of   the      neighborhood.").            Others    uphold       similar     ordinances,

citing        the    need    for   flexibility      in     the     administration          of

conditional use permits.             Bizzell, 311 Wis. 2d 1, ¶21 n.9; see,

e.g., Burrell v. Lake Cty. Plan Comm'n, 624 N.E.2d 526 (Ind. Ct.

App.        1993)(concluding       that    that    the    complained       of     "health,

safety, and general welfare standard" was not improper); Schultz

v. Bd. of Adjustment, 139 N.W.2d 448 (Iowa 1966) (concluding

that a general zoning ordinance was "constitutionally adequate

and [gave] reasonably sufficient guidelines governing the grant

or   denial         of   a   conditional    use    permit      for   operation        of    a

sanitary landfill.").

       ¶179 The court's opinion today identifies a lengthy list of

standards AllEnergy must navigate                  en route        to issuance of a

conditional use permit.             Some are relatively specific.10                 Others


      For
       10
            example,   Trempealeau   County  Zoning   Ordinance
§ 10.04(5)(b) requires the Committee to consider, amongst other
criteria:

       1.       Whether the proposed project will adversely affect
                     property in the area.

       2.       Whether the proposed use is similar to other uses
                     in the area.

       3.       Whether the proposed project is consistent with
                     adopted Trempealeau County plans or any
                     officially adopted town plan.
            . . . .

       7.                Whether the proposed            use     creates     noise,
                         odor, or dust.

                                                                             (continued)
                                            21
                                                                 No.   2015AP491.dk


are   as    broad   as   those   struck   down    in   other    jurisdictions.11

There may be legitimate debate about where to place each of

these standards on the continuum between "sufficiently specific"

and "unbridled discretion."          But there should be no debate that

an explicit refusal to identify all of the applicable standards

rings the "unbridled discretion" bell, and smartly.

      ¶180 Whatever        success   Trempealeau       County    may    have    in

convincing     us    its    standards     are    sufficiently     specific,     it

forfeits by giving itself an escape hatch so generous it makes

the standards superfluous.           As our decision today acknowledges,


       . . . .

      11.           Provision for proper surface water drainage.

       . . . .

      13.           Whether   the   proposed    project    creates
                    excessive   exterior   lighting     glare   or
                    spillover onto neighboring properties.

       . . . .

      16.           Whether the proposed project would adversely
                    affect any historic or archeological sites.
      11
       The Committee must assess an application for a sand
mining permit "in light of the County's interest in providing
for the wise use of the natural resources of the county,
aesthetic implications of the siting of such a mine at a given
location and the impacts of such a mining operation on the
general health, safety and welfare of the public." Trempealeau
County, Wis., Zoning Ordinance § 13.01.   Nor may the Committee
issue a conditional use permit unless it first determines "the
proposed use at the proposed location will not be contrary to
the public interest and will not be detrimental or injurious to
the public health, public safety, or character of the
surrounding area." Trempealeau County, Wis., Zoning Ordinance
§ 10.04(5)(a).


                                        22
                                                                             No.    2015AP491.dk


the    Committee       "is     not      limited     to     considering         the     factors

specified in the ordinance."                 Lead op., ¶41.               Instead, it may

look to "additional factors as are deemed by it to be relevant

to    its    decision       making      process."         Trempealeau        County,       Wis.,

Zoning       Ordinance       § 10.04(5)(b).           This       is    not     an     isolated

sentiment——the County is committed to not letting the listed

standards cabin its discretion:                    "Subject only to the standards

set forth in this section and in the zoning ordinance as a

whole, it is impossible to prescribe the criteria upon which

such     a    permit     may       be    granted     in    each       and     every     case."

Trempealeau County, Wis., Zoning Ordinance § 13.01.

       ¶181 So the County reserves to itself the right to make up

the    standards       as    it    goes    along.         But    the      whole      point    of

requiring a set of knowable standards is to limit the bases on

which the County may deny a permit.                       As we noted in Bizzell, a

zoning       ordinance       may     not   confer     on     the      County        "unlimited

discretion to condition the issuance of the permit on the basis

of    such    norms     or     standards      as    it     may     from      time     to   time

arbitrarily determine."                 Id., 311 Wis. 2d 1, ¶21 n.9 (quoting 3

Young, § 21.09 at 711) (internal marks omitted).                             This unbridled

discretion soundly defeats any attempt at judicial review.                                    If

the Committee may announce a standard at the same time it rules

the applicant failed to satisfy it, what are we to review?                                   How

closely the post hoc standard conforms to the evidence it was

designed to match?                That's a rhetorical inquiry, not judicial

review.



                                             23
                                                                          No.   2015AP491.dk


      ¶182 Ultimately, creating standards at will gives rise to

the same problem as the vague "wisdom" and "public interest"-

type standards.          It forces permit applicants to play the "guess

what's in my head" game with the Committee.                       AllEnergy consulted

the   ordinances      in    an    attempt     to       discern    what    standards      its

application must satisfy to get a conditional use permit from

the Committee.           At the hearing, it listened as the Committee

members touched the ordinance talismans before voting against

the application.           It learned the Committee members had concerns

about a sand mine's effect on wetlands, trout streams, soil,

beauty, recreation, topography, culture, and farming (to name a

few).     What      it     did    not   learn      was       anything    about    why    the

Committee members thought AllEnergy's specific proposal would

immanentize their concerns.                 Just as it had to guess at what

might cause the Committee to deny the application while drafting

it, AllEnergy must now retrospectively guess at what could be

done to allay the members' inchoate fears.

      ¶183 Not coincidentally, that is also what we must do.                             The

thing we are supposed to review is still secreted away in the

Committee        members'    minds.          The       generalized       concerns       they

expressed certainly track the ordinance's language, but our job

is not to evaluate whether they can repeat that language while

denying     an    application.          It        is    to    determine     whether      the

Committee        properly        measured     AllEnergy's          specific       proposal

against   knowable         and    certain    standards,          and    then    determined

whether   the      imposition      of   appropriate           conditions       would   allow
implementation of the proposal while simultaneously protecting

                                             24
                                                                       No.    2015AP491.dk


the public's legitimate interests.                    Only the Committee members

can know whether they did this, because no evidence of it made

its way into the record.

       ¶184     A proper record, and proper exercise of discretion,

would    demonstrate         the     Committee       actually    engaged       with    the

specifics of AllEnergy's proposal, and then determined whether

appropriate conditions would protect against the hazards of this

type of conditional use.              So for example, after identifying that

sand    mines      in     general     might    threaten     Trout     Run     Creek    and

surrounding         wetlands,       the     Committee       should     have     informed

AllEnergy of the nature of the threat it feared and given it an

opportunity to develop an alleviating condition.                             Flooding is

apparently a recurrent event in this area, so the Committee

could have, and should have, required AllEnergy to develop a

condition that would control for such an eventuality.                            Blowing

dust consequent upon sand mining potentially has adverse health

effects,      so    the    Committee       should    have   required    AllEnergy       to

quantify the problem and propose a condition to address it.                            And

so on with each of the specific issues raised by the community

or Committee members.               This is the Committee's core function,

and it was left undone.

       ¶185 Because the Committee did not complete its assigned

task, its decision to reject AllEnergy's application reflects an

exercise of will, not judgment.                    "Judgment" would have been the

result     of      applying     the       standards    already       adopted     by    the

Trempealeau County Board to the facts presented by AllEnergy's
application,        including       the    determination     that     sand    mining    at

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this location is sanctioned and either necessary or desirable.

But the Committee jettisoned those standards.                     And with respect

to   the    exceedingly         vague       "public    interest"        and     "wisdom"

standards,        it    required   AllEnergy     to     guess   at   what       specific

aspects of a sand mine would cause concern for its members.                           And

then it required AllEnergy to guess at what might be necessary

to allay those concerns.              Wherever the arbitrary and capricious

line might lie, "Guess what's in my head" certainly falls on the

wrong side of it.

     ¶186     Because of this, we (along with AllEnergy) must guess

at whether the imposition of conditions on AllEnergy's proposed

sand mine would be capable of properly controlling the hazards

incident to such a use.            So our decision today does not actually

review whether the Committee properly considered an application

for a conditional use permit.                It reviews whether the Committee

expressed sufficient misgivings about mining for sand on the

AllEnergy Property.           Because the Committee addressed itself to a

question outside its jurisdiction, and because its failure to

complete its task made its decision arbitrary and capricious, we

should     have    reversed     the     decision      and    remanded    for     further

proceedings.           Because we did not, I respectfully dissent.

     ¶187 I       am     authorized    to    state    that    Justices     MICHAEL     J.

GABLEMAN and REBECCA GRASSL BRADLEY join this dissent.




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