Posted by: Patricia Salkin | August 29, 2012

WI Sup. Court Find State Livestock Siting Law Preempts Local Zoning

In 2004, the Wisconsin legislature passed Statute section 93.90 (Siting Law), which regulates livestock facility siting and expansion. The law establishes various procedures for livestock farm operators to apply for, and receive, permits from political subdivisions. The following year the town adopted the law as part of its zoning ordinance. Larson Acres, Inc. applied for a conditional use permit for a facility to house 1,500 animal units. Shortly afterwards, the town adopted a revised zoning ordinance that used some of the same language but appended several words. The Town Board granted the permit, but with a number of conditions. Larson appealed the Town’s decision to the Siting Board, challenging the conditions.

After two lengthy meetings, the Siting Board issued its decision and affirmed the granting of the permit, while imposing its own substantial modifications. The Siting Board determined that the Board was correct to grant the application, but that four of the challenged conditions exceeded the Town’s legal authority. These conditions included requiring Larson to provide a nutrient management plan according to specified strategies; allowing the Town access to Larson’s farm for testing purposes; mandating compliance with the zoning ordinance “and any other applicable federal, state, and local regulations and law;” and providing that the Town would review the CUP annually to confirm compliance with its terms.

The Town appealed to the circuit court which determined that the Town acted within its authority when it imposed the conditions. The circuit court also determined that the Siting Board acted outside its lawful authority when it modified the permit. Larson appealed this decision and the court of appeals reversed the circuit court, reasoning that the Siting Law preempted the Town’s actions.

The Supreme Court turned to the Wisconsin preemption doctrine. Longstanding Wisconsin law supports the proposition that political subdivisions retain their ability to govern in the absence of state legislation. However, the legislature may, on issues of statewide concern, prohibit political subdivisions from enacting ordinances, or invalidate ordinances already promulgated. Since the issue here is one that affects both state and local concerns, political subdivisions may adopt “ordinances which, while addressed to local issues, concomitantly regulate matters of statewide concern.” However, this is limited to ordinances that complement rather than conflict with the state legislation.

One way in which a subdivision’s actions can be preempted by state legislation is if the legislature has expressly withdrawn the power of political subdivisions to act. In this instance, the court concludes that the legislature has expressly withdrawn political subdivisions’ power to regulate livestock facility siting through a number of ways. First, the legislature created uniform state standards that all political subdivisions must follow. The purpose of the law was to provide uniform regulation of livestock facilities. Doing so withdrew the power of the political subdivisions to enforce varied or inconsistent standards. Second, the legislature mandated that political subdivisions may not disapprove livestock facility permits. The law expressly states that a political subdivision “may not disapprove” of a livestock facility siting permit. Finally, the legislation has limited the conditions a subdivision may impose when granting siting permits. When political subdivisions grant a livestock facility siting permit, they must condition the permit on compliance with the applicable state standards. Therefore, the Town was preempted from regulating livestock facility siting in a manner inconsistent with the Siting Law.

The Supreme Court concluded that the legislature had strictly limited the ability of political subdivisions to regulate the livestock facility siting process and, in this instance, the Town stepped over those limitations when it impermissibly conditioned the terms of a siting permit without following the guidelines set forth by the legislature. Therefore, the court of appeals was correct when it found the challenged conditions in the permit were invalid.

Adams v. State of Wisconsin Livestock Facilities Siting Review Board, 2012 WL 2814344 (Wis. 7/11/2012)


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