July 12, 2012 – The preemption doctrine barred a municipality from placing conditions on a livestock facility siting permit that exceeded state law requirements, according to a recent decision by the Wisconsin Supreme Court in a case of first impression.
The Town of Magnolia, claiming land use power, placed conditions on a conditional use permit (siting permit) application submitted by Larson Acres Inc. (Larson), a large-scale dairy farm that wanted to expand its dairy farming operations with a facility to house 1,500 “animal units.”
The town feared that increased manure could elevate nitrate levels and impact surrounding water quality levels. Some of Larson’s neighbors, including John Adams, also opposed the siting permit and asked that it be rejected or granted with the conditions imposed.
Larson objected to a number of conditions imposed and appealed to the state’s Livestock Facility Siting Review Board (siting board), established to hear grievances.
The siting board determined that the town’s conditions violated the state’s livestock and facility siting law, Wis. Stat. section 93.90, because they exceeded standards adopted in siting law regulations. It accepted the permit after making modifications.
The circuit court disagreed, concluding that section 93.90 did not prohibit the town from attaching conditions to protect local water quality standards through its zoning authority. An appeals court reversed, concluding that section 93.90 preempted the town’s authority.
In Adams v. Larson Acres, Inc., 2012 WI 85 (July 11, 2012), a Wisconsin Supreme Court majority (6-1) affirmed, siding with Larson and concluding that the town’s conditions were preempted.
Siting Law and Regulations Control
In 2006, the Wisconsin Department of Agriculture, Trade and Consumer Protection (ATCP) finalized rules (Wis. Admin. Code ch. 51), which provide more precise guidelines for “permitting” livestock facility siting and expansion under the state’s siting law.
The majority acknowledged that, prior to enactment of the siting Law, municipalities had authority to place conditions on land use permits relating to livestock siting and expansion, but concluded that state siting laws and regulations now generally preempt such municipal action.
“Longstanding Wisconsin law supports the proposition that political subdivisions retain their ability to govern in the absence of state legislation,” wrote Justice Michael Gableman, who had been asked to recuse himself from the case by the Town of Magnolia and John Adams.
“However, the legislature may, on issues of statewide concern, prohibit political subdivisions from enacting ordinances, or invalidat[ing] ordinances already promulgated,” he wrote, noting that the town’s zoning ordinance contained language not found in the state’s siting rules.
The Anchor Test
Livestock facility siting is an issue of statewide concern that may be regulated by the state, the majority explained, but also a local concern. In this “mixed bag” situation, courts conduct a four-factor preemption test, known as the Anchor test, to reach a conclusion.
According to the majority, the Anchor test asks whether the legislature has expressly withdrawn the power of political subdivisions to act, or whether the political subdivision’s actions logically conflict with, defeat the purpose of, or are contrary to the spirit of the state legislation.
“We conclude that conditions imposed by the Town violate the first factor [of the Anchor test] because they were an attempt to exercise power expressly withdrawn by the plain language of the Siting Law,” Justice Gableman wrote.
Specifically, the siting law says municipalities “may not disapprove” a livestock facility siting permit unless one of eight narrow exceptions applies, the majority explained, concluding that none of the eight exceptions applied to allow disapproval of Larson’s permit.
“Therefore, any attempt by the Town to regulate the livestock facility siting process outside the parameters set by the Siting Law is preempted,” Justice Gableman wrote.
The majority noted that one siting law exception allows municipalities to impose permitting conditions more strict than state standards with reasonable and scientifically defensible facts, but only if the municipality adopts those conditions before a siting application is submitted. But the town adopted its ordinance after Larson submitted the conditional use permit.
The majority also ruled that the siting board may modify conditions imposed by municipalities on facility siting or expansion applications “to render them in conformity with the Siting Law.”
Chief Justice Shirley Abrahamson wrote a dissenting opinion (joined by Justice Ann Walsh Bradley in part), concluding that the siting law does not expressly withdraw the powers at issue from the town, and the majority’s opinion leads to absurd results.
“The majority opinion voids conditions the Town imposed, although it acknowledges that regardless of the permit, the Town has the power to regulate the operations of the livestock facility,” Chief Justice Abrahamson wrote.
The chief justice also argued that the siting board cannot modify conditions that are imposed by a town in granting siting permits, the argument Justice Bradley supported.
“The Siting Law limits the Siting Board’s options to outright reversal or affirmance of challenged permits,” the chief justice wrote.
Joe Forward is the legal writer for the State Bar of Wisconsin.