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Frac Sand Industry Wisconsin

A dump truck hauls a load of sand from the Sand Products of Wisconsin mine near Whitehall to its processing and loading facility last year.

The Wisconsin Supreme Court ruled Wednesday that a western Wisconsin city improperly annexed land for a proposed sand mine but sidestepped larger questions about the legality of such “balloon on a string” takings.

In 2015, the Trempealeau County city of Whitehall annexed a 1,248-acre parcel in the adjacent town of Lincoln that was targeted for development by Whitehall Sand and Rail, which sought to operate a frac sand mine within city limits.

The town challenged the annexation in court based on the shape, a narrow strip of land that zigzags more than five miles to the northwest, as well as on procedural grounds: The petition for “annexation by unanimous approval” lacked one signature.

After losing in circuit court and an appeals court, the town asked the Supreme Court to consider whether the annexed property could be considered contiguous under the state’s “rule of reason” doctrine and whether the city — by acting with a business that did not own the land — was a “controlling influence.”

The court determined the missing signature invalidated the petition and sent the case back to the circuit court, declining to address the substance of the other arguments.

On the issue of signatures, the court ruled, state law is unambiguous. In the 7-0 decision, Justice Ann Walsh Bradley wrote that “unanimous” means “unanimous.”

Peter Reinhardt, the town’s attorney, called it an important victory for towns because the court recognized that a city can’t simply call an annexation request “unanimous” and thereby limit the grounds on which it can be challenged.

“This decision at least allows a town to say, ‘Let’s call it what is,’ and our rights to be more expansive — based on what it is rather than what it’s called,” he said.

The Wisconsin Towns Association, which argued that irregular-shaped annexations violate the intent of the law and lead to all kinds of problems, hailed the ruling as a partial victory. But executive director Mike Koles said towns will likely ask the Legislature to clarify the law.

“We need a definition of contiguity,” he said.

Frac sand land annexation

‘There’s nobody to help us’

Trempealeau County, with rich silica sand resources, has seen eight such annexations since 2014 as mine owners sought to evade county regulations, which limit noise, light and hours of operation but don’t apply within city limits.

The city of Blair has wings sprouting to the northeast and northwest. The city of Independence more than doubled its area with the annexation of land three miles to the south, connected by a strip of land roughly 300 yards wide.

Independence and Whitehall — traditional school rivals — now share a narrow border where finger-shaped parcels meet.

But Koles said it’s a statewide issue that makes it inefficient to deliver services such as sewer and water, as well as police protection, so far from the traditional city limits, and it disenfranchises town citizens who find themselves surrounded by another jurisdiction.

Mike Koles

Koles

“Who do those people around that city that is four, five, six miles away vote for? Who do they call?” Koles said. “You don’t vote for the people who control the city.”

Leland Drangstveit is one such resident. The city of Blair annexed land on three sides of his farm, which had been about two miles from the city.

He said a neighboring sand mine runs 24 hours a day, and the city increased the speed limit on his street to 55 mph but doesn’t enforce it.

“We have people coming by our house in excess of 80 mph,” he said. “We have nothing to say. … There’s nobody to help us.”

The League of Wisconsin Municipalities, along with the state Realtors and builders associations, urged the court to narrow the limitations on when towns can challenge such annexations.

“Because Wisconsin’s annexation laws are designed to protect the rights of all property owners with respect to their desire to be annexed, irregular annexation configurations often result,” the groups argued. “Without the ability to annex land efficiently and cost effectively to meet the demands of prospective businesses and employers, Wisconsin cities and villages will be unable to expand their boundaries to compete nationally and internationally for new jobs and economic development.”

Whitehall Mayor Jeff Hauser said he was uncertain what the decision will mean for the city.

“We’re going to have to see what our attorneys have to say,” he said. “I was hoping there would be more of an answer.”

Meanwhile, Whitehall Sand and Rail never received the permits to build a mine, and state records show the company was dissolved in 2016.

Company co-owner Stuart Hagen said he scrapped the project after anti-mining candidates won seats on the Whitehall City Council and in retrospect believes he would have been better off going through the county.

“We spent millions of dollars on it,” he said. “We’re dead.”

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Data journalist for the Wisconsin State Journal. Covers energy and transportation, among other things. Rhymes with Lubbock. Contact him at 608-252-6146.