PUBLISHED OPINION
Case No.: 94-2336
Complete Title
of Case:
†Petition to review filed
MERLIN WEBER, BARBARA WEBER,
RYAN WEBER, ROBERT GUETCHIDJIAN,
JANE GUETCHIDJIAN and ROBERT A.
GUETCHIDJIAN, on their own
behalf and on behalf of all others
similarly situated,
Plaintiffs-Respondents-
Cross Appellants,
v.
TOWN OF SAUKVILLE, MARVIN O.
HOFFMAN, Town Supervisor,
ALBIN E. VANDE BOOM, Town
Supervisor, and PAUL H. BRUNNQUELL,
Town Supervisor,
Defendants,
PAYNE & DOLAN, INC.,
Intervening Defendant-
Appellant-Cross Respondent.†
Submitted on Briefs: July 28, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: October 25, 1995
Opinion Filed: October 25, 1995
Source of APPEAL Appeal and cross-appeal from a judgment and
and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Ozaukee
(If "Special", JUDGE: RICHARD T. BECKER
so indicate)
JUDGES: Anderson,
P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the intervening defendant-appellant-cross respondent, the cause was
submitted on the briefs of William F. White and Kimberly Cash Tate
of Michael, Best & Friedrich of Madison.
Respondent
ATTORNEYSOn
behalf of the plaintiffs-respondents-cross appellants, the cause was submitted
on the briefs of Alan Marcuvitz and Andrea Roschke of Weiss,
Berzowski, Brady & Donahue of Milwaukee.
Amicus
ATTORNEYSOn
behalf of the Wisconsin Road Builders Association, there was a brief by Paul
G. Kent, Donald Leo Bach and Todd Palmer of DeWitt, Ross &
Stevens, S.C. of Madison.
COURT OF APPEALS DECISION DATED AND RELEASED October 25, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2336
STATE
OF WISCONSIN IN COURT OF
APPEALS
MERLIN WEBER, BARBARA
WEBER,
RYAN WEBER, ROBERT
GUETCHIDJIAN,
JANE GUETCHIDJIAN and
ROBERT A.
GUETCHIDJIAN, on their
own
behalf and on behalf
of all others
similarly situated,
Plaintiffs-Respondents-
Cross Appellants,
v.
TOWN OF SAUKVILLE,
MARVIN O.
HOFFMAN, Town
Supervisor,
ALBIN E. VANDE BOOM,
Town
Supervisor, and PAUL
H. BRUNNQUELL,
Town Supervisor,
Defendants,
PAYNE & DOLAN, INC.,
Intervening Defendant-
Appellant-Cross Respondent.
APPEAL and CROSS-APPEAL
from a judgment and an order of the circuit court for Ozaukee County: RICHARD T. BECKER, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
SNYDER, J. Payne
& Dolan, Inc. appeals a summary judgment order in favor of the respondents,
ruling that a conditional use permit for mineral extraction was invalid because
it authorized activities not allowed under the Town of Saukville Zoning Code
(code), specifically, blasting and crushing.
The court also found that Saukville had not followed procedures in the
code relating to the application process and the public notice requirement.
The respondents, who are
residents of Saukville (Residents), cross-appeal the court's denial of summary
judgment on the grounds that more than thirty residences are located within
one-half mile of the quarry site.
Because we conclude that under the code neither blasting nor crushing is
a permissible method of mineral extraction, we affirm. The procedural issues raised by both sides
are therefore moot and will not be addressed.
Payne & Dolan builds
roads and bridges and for this construction requires sources of minerals. Payne & Dolan met with officials of
Saukville, seeking to develop a quarry on a 186-acre site. The code requires that within designated
zoning areas, certain uses require a conditional use permit. Town
of Saukville, Wis., Zoning Ordinance §§ 4.0-4.12 (1984). In § 4.10, “MINERAL EXTRACTION OPERATIONS”
is listed as one of the regulated uses.
Payne & Dolan
submitted a conditional use permit application to the town board, and, as
required by the code, a date for a public hearing was set by the town
clerk. Notice of the hearing was
published,[1]
and copies of the notice were mailed to all of the residents within one-half
mile of the proposed quarry. Following
the public hearing, Payne & Dolan held a tour for the plan commission and
the town board of a limestone quarry it operates in the City of Franklin. The town board then decided to seek an
environmental assessment of the proposed quarry, although this was not required
by the code. Payne & Dolan also
invited the public at large to tour the site of the proposed quarry.
Following the completion
of the environmental assessment, a public meeting was held to discuss the
assessment and review the application process.
Shortly after this meeting, upon the recommendation of the plan
commission, the town board voted unanimously to grant the conditional use permit
to Payne & Dolan.
The Residents
complained, alleging that Saukville did not follow the requirements of the code
in issuing the conditional use permit, and this failure violated the Residents'
rights to due process under the United States Constitution, pursuant to 42
U.S.C. § 1983.[2]
The parties moved for
summary judgment and the court granted summary judgment for the Residents,
finding that the code does not allow blasting and crushing as permissible
methods of mineral extraction, and that procedural errors had occurred during
the application process. The court invalidated
Payne & Dolan's conditional use permit on the above grounds and this appeal
followed.
At issue is whether the
code permits blasting and crushing as permissible methods of mineral
extraction. We construe applicable
sections of the code to make this determination.
The construction of an
ordinance under the facts is a question of law. Hansman v. Oneida County, 123 Wis.2d 511, 514, 366
N.W.2d 901, 903 (Ct. App. 1985). An
appellate court must decide questions of law independently without deference to
the trial court. See Ball
v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394
(1984). Although the board's
interpretation may be entitled to some consideration, we are not bound by its
characterization. Hansman,
123 Wis.2d at 514, 366 N.W.2d at 903.
The primary source of
statutory construction is the language itself.
Seep v. State Personnel Comm'n, 140 Wis.2d 32, 41, 409
N.W.2d 142, 145 (Ct. App. 1987). If the
language is clear and unambiguous, the court is precluded from engaging in
statutory construction. State ex
rel. Nekoosa Papers v. Board of Review, 114 Wis.2d 14, 17, 336 N.W.2d
384, 385 (Ct. App. 1983). When there is
no ambiguity, the court must afford statutory language its ordinary and
accepted meaning. Id.
The test of ambiguity is
whether “well-informed persons could have become confused.” DOR v. Nagle-Hart, Inc., 70
Wis.2d 224, 227, 234 N.W.2d 350, 352 (1975) (quoted source omitted). While there may be disagreement between the
parties as to the meaning of a statute, this is not controlling. Id. at 227 n.6, 234 N.W.2d at
352. Nor are we constrained by a
long-standing administrative interpretation or construction if the language of
the statute can be clearly understood. Id.
at 227 n.4, 234 N.W.2d at 352.
The ordinance at issue
is found in § 4.10 of the code, entitled “MINERAL EXTRACTION OPERATIONS.” It provides in relevant part:
Mineral extraction operations are
conditional uses and may be permitted in accordance with the provisions in
Sections 4.1 through 4.4 of this Ordinance, except as otherwise provided by
this section, in all districts, except in the C-1 Conservancy Overlay District.
Use Restricted. Mineral
extraction operations shall include the removal of rock slate, gravel, sand, or
any other minerals from earth by excavating, stripping or leveling. [Emphasis added.]
Town of Saukville, Wis., Zoning Ordinance §
4.10. At issue is whether the terms
“excavating,” “stripping” and “leveling” include blasting and crushing.
If words that are used
in a statute are not specifically defined, they should be accorded their
commonly accepted meaning. State
v. Dekker, 112 Wis.2d 304, 311, 332 N.W.2d 816, 820 (Ct. App.
1983). There is a presumption favoring
the common meaning. Cf. State
v. Morse, 126 Wis.2d 1, 4-5, 374 N.W.2d 388, 390 (Ct. App. 1985). This meaning may be established by reference
to a recognized dictionary. Dekker,
112 Wis.2d at 311, 332 N.W.2d at 820.
Webster's
Third New International Dictionary (1976) defines “excavating,”
“leveling” and “stripping” as follows:
Excavate: to dig out and remove (as earth or mineral matter), id.
at 791;
Leveling: to make (a line or surface) horizontal: even off: make flat or
level, id. at 1300;
Stripping: to remove the overburden from (a mineral
deposit) in mining, id. at 2264.
We
conclude from these definitions that this series of terms refers to similar
methods of mineral deposit removal, specifically, by machinery and mechanical
means. We then turn to a definition of
“blasting.” “Blasting” is defined as
“to shatter (as rock) by an explosive agent.”
Id. at 230.
“Blast” is “an explosion or violent detonation as ... the discharge of a
shot or series of shots of an explosive (as dynamite) used to break rock and
other solid material.” Id. The permitted means of mineral extraction
listed in the code denote removal by machinery; in contrast, “blasting” is
defined as removal through the use of explosives. Blasting cannot be deemed synonymous with the permitted methods
of extraction.
Having determined that
blasting is not allowed by the code as a permissible method of mineral
extraction, it is also clear that the code does not allow the town board to
grant a variance. A section entitled
“POWERS” provides in relevant part:
Variances. To hear and grant appeals for variances as will not be contrary
to the public interest, where, owing to special conditions, a literal
enforcement will result in practical difficulty or unnecessary hardship, so
that the spirit and purposes of this Ordinance shall be observed and the public
safety, welfare, and justice secured. Use
variances shall not be granted.
[Emphasis added.]
Town of Saukville, Wis., Zoning Ordinance §
9.4. We conclude that the town board
did not have power under the code to grant a conditional use permit which
allowed blasting, and we therefore affirm the trial court.
The parties have also
raised the issue of whether the code allows for the “crushing” of quarried
stone under a conditional use permit.
We conclude that Saukville cannot grant a conditional use permit under
the code to include rock crushing as a part of mineral extraction because
crushing is a distinct manufacturing process.
It is not an inherent part of extraction; it takes place after the
mineral is excavated. Rock crushing
mechanically reshapes and classifies already extracted minerals so as to give
them commercial value. Rock crushing
can be performed off-site, and we are led to conclude that it is not covered by
§ 4.10. Nowhere in the code is rock
crushing listed as either a permitted or conditional use. Therefore, the grant of a conditional use
permit which included rock crushing was improper under the code.
As we have concluded
that Saukville had no authority under its code to issue a conditional use
permit which allowed blasting and crushing activities, the procedural issues
raised in this appeal are moot. As a
general rule, this court will not determine abstract principles of law. City of Racine v. J-T Enters. of Am.,
64 Wis.2d 691, 700, 221 N.W.2d 869, 874 (1974). Since any further determination would fail to have any practical
effect, we decline to address the procedural issues raised in the appeal and
the cross-appeal.
By the Court.—Judgment
and order affirmed.
[1] A Class 2 notice was required by Town of Saukville, Wis., Zoning Ordinance § 4.4 (1984), and the clerk erroneously thought that such a notice merely required two publications, with the second publication at least a week before the hearing. However, a Class 2 notice requires the publication of two notices, one per week for two consecutive weeks. In addition, the publication notice gave the date of the meeting as Tuesday, February 10, when, in fact, Tuesday was February 11. Realizing the mistake, the town clerk stayed at the town hall on Monday, February 10, until 8:30 p.m., but no one showed up on that date.
[2] A notice of removal was filed by Saukville, and the case was removed to federal court. Party status was granted to intervening defendant Payne & Dolan. All parties moved for summary judgment, and the federal court granted the defendants' motion, dismissing the Residents' federal law claims on their merits and with prejudice, and remanding the action to the Circuit Court of Ozaukee County for resolution of the state law claims.