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Court provides clear overview of farm case

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Gina Duwe
February 22, 2011

Understanding legal jargon can be a challenge for reporters and the public. That's why we get excited when courts issue documents in layman's terms.

Such was the case today when we received a press release from the Wisconsin Supreme Court that describes the cases it voted to hear this year, including the Larson Acres case.

The Magnolia Town Board is going to meet at 7 p.m. Thursday at the town hall, 9119 W. County A, Evansville, to discuss its next step now that the court agreed to hear the case. Town board members met last week in closed session with attorney Glenn Reynolds at his Madison office.

So here's the primer for Thursday's meeting. Of course you can find years of stories on this site, but this is how the Supreme Court summarizes the case:

2009AP608 Adams v. State

This case involves two petitions for review. A decision by the Supreme Court is expected to establish a precedent as to how the state’s livestock facility permitting process interacts with local zoning authority.

Some background: The state’s Livestock Facility Siting Law (Siting Law), 2003 Wis. Act 235 [codified in Wis. Stat. § 93.90 and Department of Agriculture, Trade and Consumer Protection Rule (ATCP) 51,] was enacted in 2004. The law created the Livestock Facility Siting Review Board (Review Board) and establishes standards and procedures for local governments if they choose to require conditional-use permits for the siting of new and expanded livestock operations.

One of the petitions for review in this case was filed by the Town of Magnolia (the Town); the other by a group of neighbors (collectively Adams) who live close to the “Confined Animal Feedlot Operation” (CAFO) operated by Larson Acres, Inc. (Larson). Larson’s “home” farm had approximately 1,300 cows when this dispute arose. The facility at issue in this case is a satellite heifer facility that houses up to 1,500 “animal units.”

On May 2, 2006, Larson applied to the Town for a Conditional Use Permit (CUP) for this satellite heifer facility, which was already in existence. The Town held a contested-case type hearing on the permit application in March 2007. The Town took testimony from a number of experts it had retained to evaluate water quality issues relating to the Larson operation, including concern about elevated nitrate levels in nearby Norwegian Creek and some local wells.

The Town granted the CUP, but attached a number of conditions. The conditions required Larson to follow certain land use and crop rotation strategies in order to reduce and then minimize the buildup of nitrates. The conditions also required Larson to provide updates to the Town regarding its management practices and to allow the Town to conduct monthly water quality tests on drain tile lines.

Larson objected to a number of the conditions and appealed the imposition of those conditions to the Review Board. Larson contended that the Town’s conditions exceeded the standards adopted by the Department of Agriculture, Trade and Consumer Protection (DATCP) in Wis. Admin. Code § ATCP 51 under the Siting Law. The Review Board agreed. The Review Board upheld the Town’s granting of a CUP to Larson, but eliminated some of the conditions that the Town had attached to the permit.

The Town and Adams sought review of the Review Board’s decision in the circuit court. The circuit court concluded that the siting law did not preempt the Town’s application of its zoning ordinance on water quality standards. It also ruled that the Board could not direct the Town to reissue the CUP without certain conditions. The circuit court construed the statute as requiring the Review Board either to affirm or reverse the Town’s permit in its entirety and remanded to the Review Board with directions to affirm or reverse the permit “in whole.”

Larson appealed, and the Court of Appeals reversed. The Court of Appeals addressed, among other things, whether the Siting Law preempts the Town’s preexisting authority to impose conditions regarding water quality that differed from those adopted by DATCP under the Siting Law.

The Court of Appeals determined, among other things, that the siting law had expressly preempted the Town’s authority under those other sources of authority with respect to livestock operations. It also ruled that the conditions imposed by the Town could not be upheld under a provision that allows political subdivisions to adopt more stringent standards for siting permits because the Town did not adopt specific findings of fact showing that the more stringent requirements were necessary to protect public health and safety. Finally, the Court of Appeals concluded that the Review Board did have authority to remove the challenged conditions rather than to reverse only the entire CUP.

The Town argues that the legislative history of the siting law demonstrates that the law was not intended to eliminate the decision-making authority of local governments over the siting of livestock facilities or to diminish the authority of local governments to protect water quality.

The Town and Adams assert that the Court of Appeals’ preemption decision contradicts the state’s statutory scheme for protecting water quality. They both emphasize that the protection of water quality is an important public policy that has generally involved all levels of government working together. They argue that the Court of Appeals’ decision significantly impairs this partnership that has been developed in state statutes and administrative rules as well as local zoning ordinances over the last 35 years.

Larson contends the Court of Appeals reached its decision by simply applying well-established rules of statutory construction to the plain language of the siting law. It notes that the Court of Appeals applied preexisting preemption rules to the question of whether the siting law preempted local governments from adopting more stringent water quality standards. From Rock County.



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