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A recent Wisconsin decision highlights an issue many producers should consider when seeking permits from towns, counties, or state governments. These permitting authorities will often be allowed to assess the application's credibility. A factor that might be considered in the application's credibility could be compliance history and the ability to comply with requests from the permitting authority. This decision is in the Town of Ledgeview v. Livestock Facility Siting Rev. Board.
Background
Ledgeview Farms is a multi-generational family-operated agricultural operation in Wisconsin. The Farm sought to expand an existing livestock facility from 2017 to 2019 by filing three applications. At issue is the second application. In this application with the town for a permit, the Farm wanted to increase the number of livestock, build a new waste storage facility, expand the feed storage area, construct a new feed storage area, and construct a yard runoff transfer system. Worksheet 5 dealt with runoff management in the application required in the Livestock Facility Siting Law (Siting Law). Worksheet 5 states that the farm “agrees to manage feed storage to prevent a significant discharge of leachate or polluted runoff to waters of the state.”
During the review process for the second application, the Town let the Farm know that they intended to have zoning officials inspect the Farm to assess and verify the information in the application. However, the Farm refused to allow any inspection even when the officials showed up with an inspection warrant. Therefore, in February 2019, the Town considered the Farm’s second application complete and moved forward with the application.
The Town denied the application on multiple grounds. In the written decision, the Town highlighted the Farm’s history of compliance violations with the state’s Department of Natural Resources (DNR) and EPA, with enforcement actions against the Farm. In addition, the Farm had constructively withdrawn the application when it refused to allow the Town to inspect the Farm. This refusal degraded the Farm’s credibility regarding compliance with runoff management.
The Farm appealed this decision to the Livestock Facility Siting Review Board. The Board upheld the Town’s denial because it related to the credibility of the Farm related to past violations and the refusal to allow inspection. Both the Farm and Town sought judicial review in Circuit Court. The Circuit Court ultimately upheld the Board’s decision. The Farm then appealed to the Court of Appeals of Wisconsin.
Court Decision
On appeal, the Farm points to the only Supreme Court of Wisconsin decision addressing the Siting Law. The Farm argues that this decision takes away a political subdivision (such as a town) power to disapprove of a livestock facility unless it falls into the eight narrow exceptions in the Siting Law. The court disagrees with this argument. To the court, the prior decision did not address the issue before the court, and the court had to look at a different part of the Siting Law. In this case, the court needs to determine under what circumstances a political subdivision can deny a permit application for failure to comply with the provisions in the Siting Law.
At issue on appeal is Wisconsin Statute Annotated § 93.90(4)(d) of the Siting Law. This provision requires an applicant to comply with the rules promulgated for implementing the Siting Law. At the same time, an applicant must provide information and documentation showing the application complies with all applicable requirements for approval. The applicant would need to meet both criteria to adhere to the law. The law also allows a political subdivision to deny an application when clear and convincing evidence on the record establishes that the application does not meet the requirements.
On review, the court looks at the Board’s affirming the Town’s denial based on the Farm's failure to provide credible information required in the rules implementing the Siting Law. The Board concluded that Worksheet 5 was not credible based on multiple violations related to manure runoff, noncompliance with DNR runoff requirements, and a failure to allow the Town to inspect its current facilities. This evidence provided clear and convincing evidence to document violations in the application record. For those reasons, the Board’s decision was affirmed.
Why Care?
The Farm may potentially appeal this decision to the state supreme court, and we will have to wait to see what happens. However, this decision highlights an important issue that might arise as operations look at applying for new permits for new facilities or permits to expand existing facilities. State laws can often allow agencies to consider an applicant’s history, which can impact an applicant’s credibility to follow the existing laws.
References
Town of Ledgeview v. Livestock Facility Siting Rev. Bd., No. 2021AP240, 2022 WL 17332636 (Wis. Ct. App. Nov. 30, 2022).