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Supreme Court hears Larson Acres case

MADISON — State Supreme Court justices spent nearly two hours Wednesday afternoon hearing arguments about a permit for Larson Acres but likely will take months to decide the case over how much local control is involved in siting large dairy farms.

The hearing at the Capitol before the state’s highest court is the latest step in the Rock County case that started in 2006 over a conditional-use permit for a heifer facility at Larson Acres’ County B farm.

It is the first case under the state’s livestock facility siting law, which went into effect in 2006. The case is expected to set a precedent over how the law interacts with local zoning authority.

More than 50 people filled the Supreme Court chambers to hear the case argued before the seven justices. Justices often asked questions of attorneys, who were given set times to present their arguments. Justices asked basic questions such as, “What are usual conditions placed on a conditional-use permit?” and also asked for specific statutes to back up arguments.

Town of Magnolia attorney Glenn Reynolds told the court the town had to balance three legislative mandates: protecting the health and safety of its citizens using its zoning power; protect drinking and surface water; and accommodating “a new legislative priority to site large livestock facilities.”

“In the end, I believe the town balanced these three legislative priorities,” he said.

He said the Court of Appeals erred in its decision because the decision contradicts state laws to protect water quality.

When the Legislature created the livestock siting law, it created uniformity in siting, but it allowed local authorities to decide whether specific conditions should be in place to ensure the public’s health and safety, Reynolds argued.

Attorney Christa Westerberg, who represents the group of neighbors appealing the case, and Reynolds said protecting the water is an issue that all levels of government and agencies work on together.

Eric McLeod, attorney for Larson Acres, argued that the siting law pre-empts local zoning authority, and the siting review board has the power to reverse decisions when a town imposes unauthorized conditions.

Multiple means are available to monitor water quality, but the siting law states that it can’t be a condition enforced on a permit, he said. He cited the Wisconsin Pollutant Discharge Elimination System permit issued by the state Department of Natural Resources as an example of other monitoring methods.

Westerberg, however, said the DNR in its regulations says it relies on local jurisdictions for enforcement. The DNR recognizes the town as a partner, she said.

She also said the Right to Farm law frowns on nuisance actions against farms but encourages local authorities to regulate upfront through local zoning authority.

McLeod said the Legislature created the livestock siting law to have uniform criteria for siting farms.

“The livestock facility is not exempt from complying with a whole host of other environmental laws,” he said.

If the town believed the farm was in violation, the town could have pursued enforcement action such as an injunction, he said. After years of litigation, the town has not pursued enforcement action, he said.

The court is expected to issue a written decision in several months.