Latest Livestock Facility Siting Review Board Decision a Mixed Bag for Animal Agriculture

On November 30, 2018, Wisconsin’s Livestock Facility Siting Review Board (Board) upheld the Town of Ledgeview’s decision to deny a dairy farm a zoning approval authorizing the dairy’s expansion.1

The review required the Board to tangle with a series of factual and legal questions surrounding the farm’s application and proposed expansion. In its written decision, the Board upheld the Town’s denial of a Conditional Use Permit (CUP) on three grounds.

Despite the unfavorable result for the farm, the Board’s decision contains both positive and negative aspects for the state’s livestock community. Notably, the Board found the Town could properly consider evidence of alleged prior noncompliance because the Board reasoned that this evidence was “linked to information in the application promising to rectify continuing discharges.” However, consistent with its earlier decisions in other cases, the Board rejected several of the Town’s attempts to impose more stringent standards or conditions not contained in the state’s livestock facility siting rule (ATCP 51), or otherwise authorized under the Livestock Facility Siting Law (Siting Law).

The Good

The Board largely rejected the Town’s efforts to impose more restrictive local standards or conditions than those authorized under state law. The Board’s decision on these points reflect its understanding that the Siting Law was designed to promote certainty and predictability in the siting process.

Specifically, the Board:

  • Confirmed that a local government may not adopt a more stringent local setback from property lines without adopting reasonable and scientifically defensible findings of fact to clearly show that the more restrictive standard is necessary to protect public health or safety. Notably, the Board determined that this standard was not satisfied by merely incorporating “a recitation of studies, research and reports,” or through testimony taken at a public hearing.
  • Concluded the Town lacked authority to require the farm to place emergency overflow protection on a waste storage facility or to deny the farm’s siting application based on a lack of emergency overflow protections.
  • Found that structural failures or weaknesses in an existing waste storage facility were not a basis for denying local approval because the application contained information required for the closure of two existing waste storage facilities.
  • Determined the Town may not require a facility seeking a local approval to obtain a “performance bond,” as such measures are prohibited under ATCP 51 and may not be adopted by local governments as a “more stringent standard.”
  • Concluded the Town could not impose additional restrictions on waste storage structures by considering them a “man-made body of water,” when those restrictions were not authorized under the Siting Law or ATCP 51.
  • Rejected the Town’s efforts to impose conditions “generally applicable to” Conditional Use Permits issued by the Town when such conditions were not authorized by the Siting Law.

The Bad

The Board reached several other conclusions that may ultimately present challenges for new or proposed livestock farms.

First, the Board permitted the Town to consider alleged prior noncompliance in reviewing an application for a new or expanded livestock facility. The Board determined that the Town could consider evidence of alleged “continuing runoff violations,” because those allegations revealed that the farm’s application “lacked credible information as it relates to the applicant’s commitments to rectify continuing discharges.”

Such a holding is problematic and likely legally infirm. The Siting Law and ATCP 51 do not establish prior compliance as a criteria for approving or denying a local approval. Rather, if a farm’s application shows that the proposed facility will meet state siting standards, it must be approved. The Board’s decision in this aspect of the case appears to stray from those legislative underpinnings.

The Board’s ruling also sets up a potential Catch-22 situation for farms. The farm contended that plans submitted in the siting application were themselves designed to resolve any issues of past noncompliance. Yet, if such plans cannot be approved based on past allegations of noncompliance, how can a farm construct facilities needed to ensure compliance moving forward? In any case, prior facility performance would seem to be unrelated to the question of whether the proposed facility can and will comply with relevant regulatory requirements.

Second, the Board rejected the farm’s claim that the Town’s decision was flawed because it did not include written findings of fact supported by the evidence at the time the decision was adopted. The Board determined that it lacked the ability to review the Town’s procedures under state law. The implications of this decision are unclear. The Siting Law includes several requirements that are at least arguably procedural (such as requiring written findings of fact) which local governments must abide. The Board’s decision can be read to suggest that it believes it is powerless to remedy local irregularities it deems “procedural”—even if those irregularities result in a substantive prejudice to the farm applicant.

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