Adams v. Wis. Livestock Facilities Siting Review Bd.

• Decision Date: 11 July 2012
• Docket Number: No. 2009AP608.,2009AP608.
• Citation: 342 Wis.2d 444,2012 WI 85,820 N.W.2d 404
• Parties: John ADAMS, Linda Adams, Mike Johnson, Ann Johnson, Verne Wilkie, Rosemary Wilkie, Richard Massen and Darlene Massen, Plaintiffs–Respondents–Petitioners, v. STATE of Wisconsin LIVESTOCK FACILITIES SITING REVIEW BOARD, Defendant–Co–Appellant, Larson Acres, Inc., Intervenor–Appellant. Town of Magnolia, Petitioner–Respondent–Petitioner, v. State of Wisconsin Livestock Facilities Siting Review Board, Respondent–Co–Appellant, Larson Acres, Inc., Intervenor–Appellant.
• Court: Wisconsin Supreme Court

342 Wis.2d 444

820 N.W.2d 404

2012 WI 85

John ADAMS, Linda Adams, Mike Johnson, Ann Johnson, Verne Wilkie, Rosemary Wilkie, Richard Massen and Darlene Massen, Plaintiffs–Respondents–Petitioners,

v.STATE of Wisconsin LIVESTOCK FACILITIES SITING REVIEW BOARD, Defendant–Co–Appellant,Larson Acres, Inc., Intervenor–Appellant.

Town of Magnolia, Petitioner–Respondent–Petitioner,

v.State of Wisconsin Livestock Facilities Siting Review Board, Respondent–Co–Appellant,Larson Acres, Inc., Intervenor–Appellant.

No. 2009AP608.

Supreme Court of Wisconsin.

Argued Sept. 7, 2011.

Decided July 11, 2012.

For the petitioner-respondent-petitioner there were briefs filed by Glenn C. Reynolds, Rebecca A. Paulson, and Reynolds & Associates, Madison, and oral argument by Glenn C. Reynolds.

For the plaintiff-respondent-petitioners there were briefs filed by Christa Westerberg and McGillivray, Westerberg & Bender LLC, Madison, and Peter M. McKeever and Garvey McNeil & Associates, S.C., Madison, and oral argument by Christa Westerberg.

For the intervener-appellant there was a brief by Eric M. McLeod, Michael P. Screnock, and Michael Best & Friedrich LLP, Madison, and oral argument by Eric M. McLeod.

For the respondent-co-appellant the cause was argued by Robert M. Hunter, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

Amicus curiae briefs were filed on behalf of Wisconsin Farm Bureau Federation, Cooperative, The Dairy Business Association, Inc., The Wisconsin Cheese–Makers' Association, and the Wisconsin Pork Association, Cooperative, by H. Dale Peterson, Krista R. Pleviak, and Stroud, Willink, & Howards, LLC, Madison, Wisconsin Lakes Association, River Alliance of Wisconsin, and Wisconsin Trout Unlimited by Jodi Habush of Midwest Environmental Advocates, Madison, Family Farm Defenders, Inc. and Wisconsin Farmers Union by Lester A. Pines, Jeffrey L. Vercauteren, and Cullen Weston Pines & Bach, LLP, Madison and Kara Slaughter of the Wisconsin Farmers Union, Madison, Wisconsin Counties Association and Wisconsin Towns Association by Patrick Henneger, Andrew T. Phillips, Daniel J. Borowski, and Phillips Borowski, S.C., Mequon, and Richard J. Stadelman and the Wisconsin Towns Association, Shawano.

MICHAEL J. GABLEMAN, J.

[342 Wis.2d 450]¶ 1 We review a published decision of the court of appeals ¹ reversing an order of the Rock County Circuit Court, James E. Welker, Judge. The circuit court order reversed and remanded the cause to the State Livestock Facilities Siting Review Board (“Siting Board”), which had affirmed with modifications a permit issued by the Town of Magnolia (“Town”). The Town had granted an application for a livestock facility siting permit submitted by Larson Acres, Inc. (“Larson”), but imposed several conditions on the permit.

¶ 2 In Wisconsin, as in states all over the country,² the legislature has taken steps to balance the important interest in protecting precious natural resourceswith the important interest in encouraging a robust and efficient agricultural economy. As a central component of balancing these interests, the legislature has strictly limited the ability of political subdivisions to regulate the livestock facility siting process. The Town stepped over those limitations when it impermissibly conditioned the terms of a siting permit without following the guidelines set forth by the legislature. Because the Town's actions were violative of the Siting Law, the court of appeals was correct to find the challenged conditions in the permit invalid, and we therefore affirm.

I. BACKGROUND

¶ 3 As reflected by the voluminous record, the history between the parties is a long and rancorous one. The facts presented are only those relevant to the disposition of the appeal.

¶ 4 The narrative begins in 1977. That year, the Town passed its first zoning ordinance. The ordinance included a section entitled, “Water Quality Protection,” which provided a general prohibition on pollutants, followed by this more specific clause:

[N]o activity shall discharge any liquid, gaseous, or solid materials so as to exceed or contribute toward the exceeding of the minimum standards and those other standards and the application of those standards set forth in [Wis. Admin. Code ch. NR 102] for all navigable waters.

Magnolia, Wis., Ordinance (July 26, 1977).

[342 Wis.2d 452]¶ 5 Twenty-seven years elapsed. In 2004, the Wisconsin legislature passed, and the governor signed into law, Wisconsin Statutes section 93.90 (2003–04) (“Siting Law”),³ an act regulating “livestock facility siting and expansion.” As suggested by its title, the Siting Law established various procedures for livestock farm operators to apply for, and receive, permits from political subdivisions ⁴ allowing them to locate their facilities in particular areas.

¶ 6 The following year, the Town adopted the Siting Law as part of its zoning ordinance.

¶ 7 One provision of the Siting Law directed the Department of Agriculture, Trade and Consumer Protection (“Department”) to draw up rules providing more specific, precise guidelines for the new permitting process. Wis. Stat. § 93.90(2)(a) (2005–06).⁵ After an extensive rulemaking process, the Department fulfilled its legal duty and promulgated Wisconsin Administrative Code ch. ATCP 51 (“ATCP 51”) on May 1, 2006.

¶ 8 The next day, Larson filed an application with the Town for a conditional use permit ⁶ (“CUP”) for a facility to house 1,500 “animal units.” ^7,8

¶ 9 Approximately three weeks later, on May 24, 2006, the Town adopted a revised zoning ordinance. The new ordinance recited the same language from the water quality protection provision quoted above, but appended several words at the end:

In addition, no activity shall discharge any liquid, gaseous, or solid materials so as to exceed or contribute toward the exceeding of the minimum standards and the application of those standards set forth in [Wis. Admin. Code ch. NR 102] for all navigable waters and [chs. NR 140, 141 and 809] for groundwater and drinking water and applicable federal drinking water regulations.

Magnolia, Wis., Ordinance (May 24, 2006) (emphasis added).

¶ 10 After a lengthy dispute regarding the sufficiency of Larson's application, the Town deemed it complete and scheduled a public hearing. The hearing's organization followed formal, quasi-judicial lines: witnesses were sworn and examined by attorneys from both sides,⁹ and arguments were presented to the Board. Most of the day was devoted to testimony from several expert witnesses retained by the Town. Two of the experts were scientists who spoke at length about the environmental damage they believed the farm was inflicting, and the risks its operations posed, to the water quality of Norwegian Creek (running through the Town) and to the Town's drinking water. Larson submitted the results of various studies and reports to the Town, stressed that the alleged environmental problems had not been definitively linked to the farm, and reiterated that it read the Siting Law as forbidding the imposition of any conditions taken from outside ATCP 51's parameters.

¶ 11 On March 27, 2007, the Town Board issued its decision. It granted the CUP with seven conditions, “imposed for the purpose of protecting the Town's ground and surface water.” The conditions, quoted in their entirety, were:

1. Larson shall provide the Town, within 60 days of this decision, a plan to utilize land use, farming, and nutrient management practices to substantially reduce and thereafter minimize nitrogen loading to surface and ground water using the following strategies:

a. No fall spreading of manure on tile drained or upland field on the Cook [F]arm until nitrate pollution is substantially reduced.

b. Crop rotation to include alfalfa on the entire Cook [F]arm in 3–4 year rotations beginning in 2008 and continuing over a 4–year period until the entire Cook Farm has been rotated and is consistent with the current farm conservation plan. The rotation plan shall include no less than 3 years of alfalfa for every year of corn planted on each acre.

c. Increased frequency of soil testing from once every four years to once a year, focusing on phosphorous and nitrogen contents of the soil to account for residual nitrogen in calculating spreading plans for the upcoming growing season.

2. Larson will exchange information with the Town concerning management practices of the Facility, including notification to the Town Chair of all changes in circumstances.

3. Larson will allow access for testing well water at the Facility and access for the Town to test tile lines for water quality monitoring purposes monthly, upon proper notice to the owners of the Facility unless such testing is required under the terms of a Wisconsin Pollution Discharge Elimination System Permit [“WPDES Permit”] as issued by the Wisconsin Department of Natural Resources [“DNR”].¹⁰

4. Larson will submit nutrient plans and update annually as required underWPDES to the Town of Magnolia as well as to the DNR.

5. Larson will comply with all provisions of the Town of Magnolia Zoning Ordinance and any other applicable federal, state, and local regulations and law.

6. If water quality monitoring or testing is required under the terms of a WPDES permit as issued by the Wisconsin [DNR], the Town shall be provided with all records and information provided by Larson Acres to the DNR.

7. The Town Board shall review the CUP annually to assure itself that Larson is in compliance with the permit.

¶ 12 The conditions were preceded by sections labeled “findings of fact” and “conclusions of law,” which emphasized the ecological dangers posed by the farm to fish and other aquatic life, as well as the health risks posed to residents' drinking water. The Town Board determined that it would have been within its rights to deny the application outright, but concluded that the better course was to grant it with the conditions.

¶ 13 Larson appealed the Town's decision...