Janesville49.7°

Appeals Court hears arguments on Larson Acres

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GINA R. HEINE
February 18, 2010
— A state appeals court will issue a written decision on whether a state livestock siting board overstepped its authority in overturning restrictions on a conditional-use permit issued by the town of Magnolia.

Both sides presented oral arguments to the panel of three judges in the Supreme Court chambers Wednesday at the Capitol.


The dispute started in 2002 when Larson Acres applied for a conditional-use permit for a heifer facility at its County B farm in Magnolia Township. Since then, the permit has been the subject of many town and court hearings.


The issue is now in the hands of the 4th District Court of Appeals after the Wisconsin Livestock Facilities Siting Review Board and Larson Acres appealed a Rock County Court decision on the permit. In question is whether the livestock siting board overstepped its authority when it overruled some of the conditions that the town placed on the permit when it was issued in March 2007.


About 40 people attended Wednesday’s hearing, which lasted all morning.


The role for Judges Margaret Vergeront, Paul Lundsten and Paul Higginbotham is to decide what the Legislature intended when it approved a new livestock siting law, they said.


“Ultimately, it’s not really about whether Larsons’ farm is polluting, not polluting or has been polluting. It’s about what the statutes say,” Lundsten said.


Larson Acres attorney Eric McLeod said the siting law states the town must grant a permit as long as the applicant follows the provisions.


“It allows them (the town) the enforcement mechanism to monitor compliance with those state standards,” he said.


The Legislature created the siting board, and the board’s power is implicit in the statutes to modify a conditional-use permit that does not comply with requirements of the law, said Robert Hunter, the assistant attorney general representing the livestock siting board.


The interest of the neighbors of Larson Acres who filed suit is clean water, said their attorney, Christa Westerberg. Since the state expressly chose not to regulate water quality in the livestock siting, it leaves it open for local governments to regulate, she said.


Glenn Reynolds, town of Magnolia attorney, argued that the new law only regulates where and how farms operate. It doesn’t strip the town’s zoning authority or the town’s power to adopt water quality standards, he said.


THE HISTORY

March 2002: Larson Acres submits its first application for a conditional-use permit to build a facility for 1,500 animal units on County B in Magnolia Township.


May-October 2002: The town board denies the permit. Larson Acres files an appeal to the town’s board of adjustment, which refers a decision back to the town board. The town board sends a proposed agreement amending terms of the permit application back to the board of adjustment.


December 2002: The board of adjustment approves the permit.


February 2003: The facility’s neighbors, organized into Citizens Against Factory Farming, file a lawsuit and win when Rock County Judge Michael Byron rules in April 2004 that the board of adjustment didn’t have the authority to grant the permit.


The town board also denies an amended version of the first conditional-use permit application.


May-June 2004: Byron denies Larson Acres’ request to allow nearly 1,000 cows to remain in its new livestock facility while Larson Acres appeals the voided conditional-use permit to a higher court. Byron instead orders the cows beyond the ordinance (400) be removed. Larson Acres does not remove the cows from the barn that has no permit.


December 2004: The Larsons file a lawsuit against the town because of its decision.


May 2005: The Fourth District Court of Appeals upholds Byron’s decision from a year earlier that the board of adjustment didn’t have the authority to grant a conditional-use permit.


June 2005: The Larsons appeal to the state Supreme Court, which later refuses to hear the case. The town later files its own lawsuit against the dairy for being out of compliance with the restrictions on the number of animals imposed by Byron’s ruling. The Larsons built the facility and moved in more than 800 animals while the issue was in litigation.


May 2006: Larson Acres files its fourth conditional-use permit application. This one is under the state’s new Livestock Facility Siting Law.


October 2006: Larson Acres agrees to pay a $72,500 fine for operating in violation of the ordinance for about 700 days instead of facing fines of up to $500 per day for each day they weren’t in compliance. The agreement allows the dairy to keep about 900 cows in the facility until a decision is made on the farm’s fourth conditional-use permit application.


Larson Acres files the first appeal to a new state board created by the livestock siting rule, saying the town is being unreasonable. The state review board sends the application back to the town board, refusing to rule on the case because the town had never made a decision on the permit.


January 2007: The town planning and zoning committee recommend to the town board it approve Larson’s permit application with several conditions.


March 2007: The town board approves the conditional-use permit with seven conditions. Larson Acres, saying the country is trying to micromanage the farm, later appeals the decision to the state’s livestock siting board.


July 2007: The state livestock siting board, in its first-ever hearing, reversed some of the conditions the town board set on the permit.


September 2007: Four families that live near Larson Acres and the town board appeal the state board’s decision in Rock County Court.


December 2008: Rock County Judge James Welker overturns the state board’s decision on the permit, saying the state board overstepped its authority when it overruled some of the town’s conditions on the permit. The state board later appeals Welker’s decision to the 4th District Court of Appeals.


July 2009: Larson Acres announces plans to expand its herd from 2,650 to 5,275 animals on two farms and build a second milking facility at the main farm on Highway 59. The farm applies for a new conditional-use permit to expand its milking herd to 2,900 cows.


October 2009: The town’s planning and zoning committee recommends approval of the new conditional-use permit.


December 2009: The town board approves the new conditional-use permit with five conditions. The Larsons say the conditions still go beyond what state law allows. Town board member Dave Olsen says after that meeting that the town would modify the new permit’s conditions to fit whatever the Court of Appeals rules on the other conditional-use permit.



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