Oneida Seven Generations Corp. v. City of Green Bay
| Decision Date | 29 May 2015 |
| Docket Number | No. 2013AP591.,2013AP591. |
| Citation | 362 Wis.2d 290,865 N.W.2d 162 |
| Parties | ONEIDA SEVEN GENERATIONS CORPORATION and Green Bay Renewable Energy, LLC, Plaintiffs–Appellants, v. CITY OF GREEN BAY, Defendant–Respondent–Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner, the cause was argued by Ted A. Warpinski, with whom on the briefs was S. Todd Farris, Christopher M. Meuler, Joseph M. Peltz, and Friebert, Finerty & St. John, S.C., Milwaukee.
For the plaintiffs-appellants, the cause was argued by Michael B. Apfeld, with whom on the brief was Eric J. Wilson, Dustin B. Brown, and Godfrey & Kahn, S.C., Madison.
An amicus curiae brief was filed by Thomas D. Larson, Madison, on behalf of the Wisconsin Realtors Association.
¶ 1 Oneida Seven Generations Corporation sought a conditional use permit to install a renewable energy facility in the City of Green Bay (the City).1 Although the City initially voted to grant the permit, it subsequently voted to rescind the conditional use permit on the basis that it was obtained through misrepresentation. The court of appeals determined that the City's decision that the permit was obtained through misrepresentation was not supported by substantial evidence and reversed.2
¶ 2 The City now seeks review of the unpublished decision of the court of appeals that reversed the order entered by the circuit court which had affirmed the City's decision to rescind. The City contends that the court of appeals incorrectly applied the substantial evidence standard by substituting its judgment for that of the City's Common Council.
¶ 3 Like the court of appeals we conclude that the City's decision to rescind the conditional use permit was not based on substantial evidence. In conducting a certiorari review to determine whether there was substantial evidence to support a decision, we consider the evidence in context. Considering the context, we determine that based on the evidence presented, the City could not reasonably conclude that the statements by Oneida Seven's representative to the City government regarding the proposed facility's emissions and hazardous materials, its stacks, and its technology were misrepresentations. Accordingly, we affirm the court of appeals.
¶ 4 A review of whether there is substantial evidence to support a determination that the permit was obtained through misrepresentation generally requires a fact intensive analysis. This case is no exception. We begin by examining the nature of the proposed facility and the record established to support the initial grant of the conditional use permit.
¶ 5 Oneida Seven proposed a renewable energy facility that would take municipal solid waste and turn it into energy via a pyrolytic gasification system. It described the process as follows: municipal waste is delivered to the facility where it is sorted and inappropriate materials, such as tires and plastics, are removed. Then the waste is transferred into a pyrolytic converter, where it is heated and processed into gas. The remaining residue (such as ash) exits the unit. The gas is then cleaned in a venturi separator, before it is stored. Some of the gas (referred to as synthetic gas or “syngas”) is used to fuel the system, the rest can be used to generate steam or electricity.
¶ 6 After meeting with Green Bay's Economic Development Department to discuss the permitting process and possible locations for its proposed facility, Oneida Seven submitted an application to the Plan Commission requesting a conditional use permit allowing it to place the facility on Hurlbut Street in Green Bay. The application was supported by a 149–page report on the facility.
¶ 7 The report includes proposed blueprints for the facility and artist's renderings of its exterior. It also contains photographs of a pyrolytic gasification unit with various parts labeled, including its “exhaust stack.” In addition to these illustrations, the report describes the various permits that would be required from the Wisconsin Department of Natural Resources (DNR) and the requisite reporting to and oversight by the DNR of the facility's emissions.
¶ 8 The report also contains a 50–page section entitled “Emissions.” This section consists of two papers analyzing the impact of similar facilities on air quality. The papers identify possible emissions from conversion technologies, explain that they are significantly lower in amount than emissions from other types of facilities, and observe that the emissions from facilities using conversion technologies fall within local, state, federal, and international emission limits. The papers are followed by an appendix listing over 100 facilities throughout the world that are disposing and converting biomass (principally municipal solid waste) in the process of producing energy and/or fuels.
¶ 9 After reviewing Oneida Seven's submissions, the City's planning staff drafted a report to the Green Bay Plan Commission, recommending that it approve the request for the conditional use permit. The staff observed that the proposed use is an appropriate land use for the site, that the site is in a heavily industrial area separated from any residential uses by Interstate 43, and that there had been no inquiries or objections to the request as of the date of the report.
¶ 10 The Plan Commission considered the project at an open meeting on February 21, 2011. The CEO of Oneida Seven, Kevin Cornelius, its engineer, and its project manager presented PowerPoint slides accompanied by an audio recording to the Commission which explained how the pyrolysis process works. After the recording concluded, Cornelius, the engineer, and the project manager took questions from the Commission.
¶ 11 During the question and answer session, a commissioner asked about what was in the gas after the gasification process was complete. Mr. Cornelius responded that the gas was cleaned and toxins would be removed from it. The same commissioner then acknowledged the emissions research Oneida Seven had provided and questioned the procedures employed by a site in California. The engineer responded that California's site chose a system based on similar technology. Like that system, the new system Oneida Seven would be using meets all emission requirements.
¶ 12 Another commissioner asked if there were other communities using this technology. The engineer and Cornelius replied that this would be the first community in Wisconsin to use this technology, but other industries use different versions of gasification systems.
¶ 13 Commissioner Wiezbiskie asked about the system's output. Mr. Cornelius or the engineer replied that the process would create ash that would be tested and reused if test results were appropriate.3 Then, after referring to the comprehensive emissions report Oneida Seven had submitted, Commissioner Wiezbiskie asked about the ash and the syngas that the process would produce. Mr. Cornelius or the engineer responded that the emissions would be taken out in the gasification process and the syngas would be cleaned.
¶ 14 Again referencing the emissions report, Commissioner Wiezbiskie sought further clarification about what toxins would be in the ash. Either Cornelius or the engineer responded that the toxins would be removed from the ash and that they would be the only by-product from the process. He further explained that the emissions would meet EPA and DNR standards.
¶ 15 After the question and answer session, the Plan Commission voted unanimously to recommend approval of the conditional use permit. Their recommendation suggested that a number of conditions be placed on the permit. These included the requirement that the facility comply with all municipal regulations and the requirement that the facility comply with federal and state regulations governing air and water quality.
¶ 16 The Common Council took up Oneida Seven's request for the conditional use permit on March 1, 2011. Shortly after the project was brought to the floor, one of the aldermen clarified that if it got approved, the Department of Energy, the DNR, and the EPA would also be reviewing the project:
¶ 17 The Common Council viewed the same PowerPoint presentation that Oneida Seven had played for the Plan Commission. During the presentation, Cornelius explained the gasification process, noting that there would be no emissions coming out of one “portion of the system,” but there would be “emissions from the burner,” which meet emission standards. He observed that there would be no smokestacks, adding, “for those of us in Green Bay we know what that means.” Mr. Cornelius also stated that “gasification technology is not new.” He explained how in developing this project, they had gone around the country looking at different systems, and ultimately decided on a system they had seen in California.
¶ 18 Then, Cornelius and the project manager answered questions from the Council. Members of the Council asked about tax exemptions, whether the land could be placed into a trust, and where Oneida Seven would be obtaining the waste material that the plant would process. One alderman recognized that although there would not be stacks, there would be an exhaust output, and asked if the exhaust would be clean. Mr. Cornelius responded “yes.” The Council also heard testimony from an independent consulting engineer in support of the project. He gave detailed information about the various emissions gasification systems produce. After a lengthy discussion of the Tri–County Agreement and tipping fees, the Council voted ten to one to approve the conditional use permit with the conditions recommended by the Plan Commission.4
¶ 19 In accordance with the conditions of the permit, Oneida Seven applied for the various city, state,...
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