Posted by: Patricia Salkin | August 27, 2010

WI Appeals Court Holds Town Authority Preempted By Livestock Facility Siting Law

Larson Acres, Inc., applied to the Town of Magnolia for approval of an expanded livestock facility for its dairy operation to house 1,500 livestock. The Town approved the application subject to a number of conditions including a requirement mandating specified land use strategies “to substantially reduce and thereafter minimize nitrogen loading to surface and ground water.” The conditions also required that Larson “exchange information with the Town concerning management practices of the Facility” and “allow access for testing well water at the Facility and access for the Town to test tile lines for water quality monitoring purposes monthly.” 

Larson appealed to the Livestock Facility Siting Review Board challenging the imposition of several conditions. The Board ordered the issuance of the permit without the conditions. Several neighboring property owners along with the Town challenged the Board’s action. 

The Court of Appeals upheld the Board’s actions, holding that the Town’s authority to impose conditions on the issuance of the permit is preempted by the uniform standards established under the State’s Livestock Facility Siting Law, Wis. Stat. § 93.90. That Law allows local governments to impose more stringent requirements than the state standards if they adopt the requirement by ordinance before an applicant files an application for approval and the standards are based on “reasonable and scientifically defensible findings of fact . . . that clearly show the requirement is necessary to protect public health or safety.” The Court of Appeals concluded that the Town’s conditions imposed (related to water quality concerns) did not meet these statutory requirements. The Court noted, that it did not intend, by this decision to minimize the Town’s concerns, but that the Court is required “to construe statutes as written, and the language of § 93.90 reveals a clear legislative decision to prioritize uniformity in the approval process, in part by limiting the authority of political subdivisions.”

 Adams v. State of Wisconsin Livestock Facilities Siting Review Board, 2010 WL 2519595 (WI. App. 6/24/2010)

The opinion can be accessed here

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