Posted by: Patricia Salkin | March 25, 2014

WI Court of Appeals Finds Decision to Revoke a Conditional Use Permit Arbitrary and Capricious

Seven Generations Corp. applied for a CUP to operate a solid waste disposal facility in Hurlbut, Wisconsin. Seven Generations provided a detailed summary of the project, which was forwarded to the City’s Plan Commission. This facility would utilize pyrolysis, described as the “thermal decomposition of organic matter at temperatures sufficient to [vaporize] or gasify organic material in the absence of oxygen….” Seven Generations represented that the facility would convert municipal solid waste and other waste materials to energy by heating them in a sealed chamber with high efficiency, low emissions mono-nitrogen oxide burners. In August 2011, Seven Generations applied for a building permit for the facility, which the City granted.

The Common Council voted to direct the Plan Commission to hold a hearing to determine whether the CUP had been obtained by misrepresentation. They asserted Seven Generations had misrepresented the potential environmental impact of the facility when applying for the CUP; specifically, they claimed the facility would have exhaust stacks and produce emissions. Notice of the hearing was published in late September 2012, and the issue was defined as whether “the information submitted and presented to the Plan Commission was adequate for it to make an informed decision whether or not to advance the [CUP] that was recommended.” By a vote of seven to five, the Common Council voted to revoke the CUP based upon unidentified misrepresentations.

On appeal, the court held that the City generically stated that Cornelius had made “false statements” while responding to questions and concerns about “the public safety and health aspect of the Project and the Project’s impact upon the City’s environment.” The City claimed these misrepresentations were made by Seven Generations representatives while answering questions about “emissions, chemicals, and hazardous materials.” But none of these findings identified the supposedly false statements with any specificity. Because the City did not identify the statements on which its action was based, its decision appeared to the court to be the product of “unconsidered, wilful or irrational choice, and not the result of the ‘sifting and winnowing’ process.” Accordingly the court struck the City’s decision as arbitrary and capricious.

Oneida Seven Generations Corp v City of Green Bay, 2014 WL 1182629 (Wisc. App. 3/25/2014)

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=109414


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