WI Supreme Court Holds City’s Decision to Rescind Conditional Use Permit for Renewable Energy Facility Was Not Based on Substantial Evidence

Oneida Seven Generations Corporation submitted an application to the Plan Commission requesting a conditional use permit allowing it to place a renewable energy facility in Green Bay. The application was supported by a 149–page report on the facility. The Plan Commission considered the project at an open meeting on February 21, 2011. The CEO of Oneida Seven, Kevin Cornelius, its engineer, and its project manager presented PowerPoint slides accompanied by an audio recording to the Commission which explained how the pyrolysis process works. Although the City initially voted to grant the permit, it subsequently voted to rescind the conditional use permit on the basis that it was obtained through misrepresentation. The court of appeals determined that the City’s decision that the permit was obtained through misrepresentation was not supported by substantial evidence and reversed.

The motion to rescind the conditional use permit was explicitly based on the reasons provided by Alderman Sladek: 1) Cornelius made untruthful statements to city governmental bodies in response to questions related to the public safety and health aspects of the project and the project’s impact on the city’s environment; 2) those statements were clear and left no impression of doubt or uncertainty; 3) Cornelius knew his statements were false; and 4) the subject matter of the questions was of high importance. the intentional misrepresentations to which Alderman Sladek was referring were Cornelius’s statements at the February 21, 2011 Plan Commission meeting “to questions or concerns related to the public safety and health aspects of the project and the project’s impact on the city’s environment” and, more specifically, Cornelius’s responses to commissioners “when they asked about emission, and chemicals, and hazardous materials at this project.” Here, there was no indication in the record that the statements Cornelius actually made (that the scrubbers remove the harmful toxins from the syngas and that the dioxins and mercury would not be in the ash, which could be reused for beneficial purposes) were false.

Next, the City alleged that the statement by CEO that there would be no smokestacks was an intentional misrepresentation. However, there was no indication that Cornelius’s use of the term smokestack during his public presentation to the Plan Commission was a reference to the technical term “stack” as defined by the DNR; on the contrary, it appeared that Cornelius’s statement was reiterating the statement made in the recorded presentation, which used the term smokestacks as a reference to the stacks present at the coal powered power plants. Those stacks are several hundred feet high and twenty to thirty feet wide, whereas the “stacks” at the proposed facility are exhaust pipes that would only be approximately 26 inches wide and 35 feet tall, rising only 3 feet above the roofline of the facility. The court determined that if the City had not wanted such vents, it could have added that as one of the conditions to the conditional use permit. Accordingly, the court concluded that the City’s decision to rescind the conditional use permit was not based on substantial evidence, and therefore affirmed the holding of the court of appeals.

Oneida Seven Generations Corporation v City of Green Bay, 2015 WL 3458190 (WI 5/29/2015)

The opinion can be accessed at: http://wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=142646