Busy Year for the Livestock Facility Siting Review Board: Recent Decisions Confirm County Permitting Procedure Under Livestock Siting Law

The Wisconsin Livestock Facility Siting Review Board (LFSRB or the Board) has had a busy year issuing two decisions so far. In Friemoth v. Walworth County, the Board reversed a conditional use permit (CUP) issued by the County because the CUP imposed invalid conditions and lacked findings of fact. In Johnson v. Jefferson County, the Board rejected challenges to a CUP issued to Daybreak Foods, Inc. and affirmed the County’s decision to issue the permit. As of this alert, one additional case is pending before the LFSRB.

 

Walworth County Dairy Farm Successfully Challenges Conditional Use Permit Conditions

In January 2018, LFSRB ruled in favor of an expanding Walworth County dairy farm that challenged certain conditions imposed in a CUP issued by Walworth County.

On June 7, 2017, Adam and Jennifer Friemoth of Friemoth Farms (Friemoths) applied for a CUP from the County to expand their dairy farm operations in the Town of Lafayette. The County deemed the application complete on July 30, 2017 but tabled the application until it received the Town’s decision on the application. Following an amendment to the application to correct errors discovered during the public hearing process, the County issued a CUP to the Friemoths on September 21, 2017 for the dairy expansion. The County included several operational conditions in the CUP, including the following three conditions:

 

  1. No transport of animal waste on roadways shall occur between 6:00 p.m. and 6:00 a.m.;
  2. The applicant must provide adequate manure storage and the manure storage facilities must be emptied within two weeks of any time that spreading begins; and
  3. The applicant will be responsible for cleaning tracked soil or manure resulting from farm operations off of Town and County roads on a daily basis.

On October 20, 2017, the Friemoths appealed these three CUP conditions to the LFSRB. In addition, the Friemoths’ neighbors filed a separate appeal with the LFSRB arguing that the CUP was incomplete and inaccurate, and that the County failed to include written findings of facts in its decision.

First, LFSRB concluded that by not including findings of facts in its decision, the County violated the Livestock Facility Siting Law and its implementing regulations. Second, LFSRB determined that the County may not condition approval of the application upon prior approval of the Town, because the Town’s role is advisory only and should not delay the decision-making process.

The LFSRB also ruled that a farm applicant may amend its application to correct errors in an application or address issues that arise during the public hearing process — even when the application has already been determined to be complete.

As for the three operational conditions challenged by the Friemoths, the Board ruled that these conditions did not comply with state statutes and accordingly cannot be enforced. With respect to the conditions imposing limits on when animal waste may be transported on roadways and imposing additional manure-storage related requirements the Board concluded that these conditions were invalid, because they were inconsistent with uniform state standards established under the Livestock Facility Siting Law and the County has not followed the appropriate procedure to adopt more stringent local standards as part of its livestock facility siting ordinance. Finally, the Board found that the County cannot require a farmer to clean tracked soil or manure off of Town or County roadways as a condition of a livestock facility siting approval. As LFSRB explained, the County and farmer may enter into a voluntary agreement to clean manure or soil off of the roadways; however, the Livestock Facility Siting Law does not provide authority to require such an agreement as a siting condition.

Given that the CUP did not comply with state statutes, the LSFRB reversed Walworth County’s decision and remanded the application to the County for further proceedings consistent with the Board’s ruling.

Click here to view the full LFSRB Decision.

Daybreak Foods Inc. Expansion CUP Challenged

On April 16, 2018, an adjacent landowner challenged Jefferson County’s decision to grant a CUP to Daybreak Foods, Inc. (Daybreak) for an expansion of Daybreak’s chicken layer and pullet operation. The petitioner alleged that Jefferson County failed to properly consider air quality and odor concerns in issuing the CUP.

Earlier in the year, Daybreak had filed an application with Jefferson County for local approval to expand its livestock facility. In its application, Daybreak calculated an odor score of 648 points based on its submission of an optional advanced odor management plan. Jefferson County Planning and Zoning Committee determined the application to be complete in February and held a public hearing on the application in mid-March.

On March 26, 2018, Jefferson County Planning and Zoning Committee granted Daybreak’s CUP with the following conditions:

  1. Annual nutrient management plan updates shall be submitted to the Land and Water Conservation Department (LWCD).
  2. LWCD must be notified of when work will begin on the manure storage structures.
  3. The manure storage structure certification shall be filed at least 10 days prior to population of the facilities by the animal unit count approved under the permit, with as-built plans also provided to LWCD.
  4. Construction of new or expanded livestock housing structures and waste storage structures and population of the facility must begin within two years.
  5. Any alterations or additions to the operation after the permit is issued that changes one of the worksheets requires a permit update or new Livestock Siting Application.
  6. The operation shall be conducted as submitted in the application and worksheets.

The LFSRB considered the following issues:

  1. Did Daybreak provide sufficient credible information in its application for approval to show that the proposed facility met the odor standard in Wis. Admin. Code § ATCP 51.14?
  2. Is there sufficient evidence to find that Daybreak cannot meet the odor standard and therefore, the issuance of the CUP cannot be sustained by the LFSRB?
  3. Are there sufficient grounds to review conditions placed on Daybreak’s CUP by Jefferson County?

LFSRB concluded that the evidence in the record showed that Daybreak’s application was complete and contained credible information and documentation to show that the proposed facility met the odor standard in Wis. Admin. Code § ATCP 51.14 with a passing score of 648 points. LFSRB further concluded that there was not clear and convincing evidence in the record to rebut the presumption of compliance with the odor standard as required for the County’s determination to be overturned by the Board. Finally, LFSRB concluded that there were insufficient grounds to review the conditions placed on the CUP because the request for review did not raise this issue on appeal to the Board. Moreover, LSFRB reasoned that the conditions in the CUP are reasonably related to monitoring compliance of the applicable standards and did not create new standards. Therefore, LFSRB rejected the adjacent landowner’s challenge to the Daybreak CUP and affirmed the decision of Jefferson County.

Click here to view the full LFSRB Decision

These cases show that expanding livestock operators subject to the Livestock Facility Siting Law in their local jurisdiction should consider carefully any “operational” conditions that a locality attempts to impose on the farm as a condition of siting approval. Such conditions may be unenforceable and subject to challenge.