Janesville41.8°

Appeals Court agrees with Larson Acres, siting board

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GINA R. HEINE
June 25, 2010
— Now it’s up to the Magnolia Town Board and neighbors of Larson Acres to decide if an eight-year battle over a permit for the farm should go on.

An appeal to the state Supreme Court would be the next and final step after the state District 4 Court of Appeals on Thursday agreed with Larson Acres and the state livestock siting board over restrictions in a conditional-use permit for the farm.


“Our entire family is very pleased with today’s decision by the court of appeals,” Mike Larson said. “We believed all along that the town of Magnolia’s decision to add burdensome and unnecessary conditions to our permit violated the intent of the siting law.”


Town Board Chairwoman Fern McCoy and Supervisor Dave Olsen had not reviewed the court’s decision Tuesday afternoon but said they were surprised.


“I thought they would decide in the favor of the environment,” Olsen said.


The board has 30 days to appeal the decision. The board’s next meeting is Tuesday, July 13.


Town attorney Glenn Reynolds said he was disappointed because the ruling means towns can’t monitor water quality in the permitting process.


“I certainly think there’s merit for the supreme court to review it,” Reynolds said. “I don’t agree with the court of appeals decision … I hate to see it end here without a final push to the highest court, but that’s not my decision.”


While the Larson family is happy with the court’s decision, Larson said, they “are still very concerned with the long-term financial impact that the town’s decision will have with local taxpayers.”


The Gazette has filed a request under the Wisconsin Open Records Law for the town’s costs related to Larson Acres.


Christa Westerberg, an attorney for the neighbors, said she’s disappointed by the decision, “and the court’s conclusion that towns can’t impose conditions on siting permits that are meant to protect water quality.”


She said she had not talked to her clients and did not know their next step.


A long battle

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.


Conditions the town imposed on the permit in March 2007 pushed the farm to appeal the town’s decision to the state livestock siting board, which ordered the permit reissued with fewer conditions. The town and a group of neighbors appealed in Rock County Court, where Judge James Welker vacated the board’s decision.


Larson Acres and the livestock siting review board appealed, and the court of appeals released its 26-page decision Thursday after hearing oral arguments in February.


The appeals court decision, written by Judge Paul Lundsten, says the livestock siting board acted within its powers when it reversed some of the conditions the town had placed on the permit.


“We further agree with Larson and the (livestock siting) board that the board properly reversed the improper conditions without reversing the permit in whole,” the decision states.


The neighbors who filed the suit are John and Linda Adams, Mike and Ann Johnson, Verne and Rosemary Wilkie and Richard and Darlene Massen.


Implications

Cheryl Daniels, attorney for the livestock siting board, said the decision was clear, “which we are very pleased with” because it gives the board clear direction.


“What is particularly important is that we know how to move forward,” she said. “It definitely clarifies what the statute is suppose to do, which is to set a statewide standard.”


The case will help a committee reviewing the livestock siting law, which went into effect four years ago.


Westerberg said the decision places more importance on other methods of trying to protect water quality, specifically the state’s review of the siting regulations.


“I think this decision would rightly put more pressure on (the Department of Agriculture, Trade and Consumer Protection) to ensure the next round of siting regulations include measures to protect water quality,” she said.


Thursday’s decision also sets the standard for a second conditional-use permit for Larson Acres, Daniels said. That permit—for another expansion at the farm—was granted last year with conditions, which Larson appealed to the livestock siting board.


That board this spring made the same decision it did with the first Larson permit: It overruled some of the conditions the town had placed on the permit.


The town said at the time that it would modify that permit to fit the court of appeals ruling because it was a nearly identical case.


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THE HISTORY

March 2002: Larson Acres submits its first application to the town of Magnolia for a conditional-use permit to build a facility for 1,500 animal units on County B in Magnolia Township. The District 4 Court of Appeals in May 2005 decides the town’s board of adjustment did not have the authority to grant the permit. The state Supreme Court later refuses to hear the case.


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


March 2007: The town board approves the conditional-use permit with seven conditions. Larson Acres, saying the town is trying to micromanage the farm, later appeals the decision to the state’s livestock siting board. The state board reversed some of the conditions the town board had set on the permit. The town board and neighbors appeal the state reversals to 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. Welker’s decision is appealed to the District 4 Court of Appeals.


July 2009: Larson Acres applies for a new conditional-use permit to expand its milking herd to 2,900 cows.


December 2009: The town board approves the new conditional-use permit with five conditions. The Larsons later appeal some of the conditions to the state livestock board, which again reversed some of the town’s conditions.


Thursday: Court of appeals issues its decision, agreeing with Larson Acres and the livestock siting board.



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