When is a cow not a cow? When it is part of a herd at a Concentrated Animal Feeding Operation (CAFO), which means that the cow is actually 1.4 “animal units.”
A CAFO generally involves a farm operation with more than 500 animal units. CAFOs are mega farms, and have more in common with industrial uses than family farm operations.
CAFOs create large volumes of animal waste that needs to be stored, transported and disposed of. Housing so many animals can create offensive odors and attract flies. CAFO operations also require intense truck traffic to transport feed, bedding sand, animal waste, and the raw milk produced by the operation.
The Livestock Facility Siting Law
Over the past several years, I have been contacted by developers and property owners who argued that the CAFO operations constitute a nuisance or should be located in an industrial zoning district.
The property owners’ first line of attack is to go to the local government body to solve the problem. Unfortunately, under Wisconsin law, the deck is stacked against these property owners.
com steven-frassetto mennlaw Steve Frassetto, Marquette 1986, is shareholder with Menn Law Firm, Ltd., Appleton. He concentrates his practice in real estate, business, and corporate matters.
The livestock facility siting law became effective April 28, 2004, and was codified at Wis. Stat. section 93.90. The Wisconsin Department of Agriculture, Trade, and Consumer Protection (Datcp) adopted administrative rules for the siting of livestock facilities, which can be found at Chapter ATCP 51. The DATCP rules apply to all towns, villages, cities, and counties.
The purpose of the law was to provide uniform regulation of livestock facilities throughout the state. The siting law bars local governments from enacting regulations governing CAFOs within the subject areas that the state regulates, with limited exceptions.
The state law regulates setbacks, wells for livestock facilities, air emissions, nutrient management, and standards for regulation of waste storage facilities (although application of the manure storage and handling plan is controlled by the county).
Local Governments and CAFOs
Local governments may regulate CAFOs through licensing and/or zoning.
However, local governments may not adopt standards that are more stringent than state standards, unless they are able to support the stricter standard with
reasonable and scientifically defensible findings of fact adopted by the political subdivision, that clearly show that the requirement is necessary to protect public health or safety.1
Most local governments defer to the various state agencies for control of these facilities. The state agencies made it clear that, if a CAFO operator meets the state standards, the state agencies will grant the right to operate as a CAFO.
To compound matters, Wisconsin also has one of the strongest right-to-farm laws, as set forth in Wis. Stat. section 823.08.
The legislative determine that “the law should not hamper agricultural production or the use of modern agricultural technology,” and that local zoning authority is a more appropriate alternative than a nuisance action to prevent conflicts between uses.2
This law goes on to prohibit the use of a nuisance action against an agricultural use or practice conducted on land that was in agriculture use
without substantial interruption before the Plaintiff began the use of property that the Plaintiff alleges was interfered with by the agricultural use or agricultural practice (and) the agricultural use or agricultural practice does not present a substantial threat to public health or safety.3
Awareness Is Key
In light of the above facts, prospective purchasers of rural land should be aware of adjacent land uses prior to consummating any purchase, or they purchase at their peril.
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1 Wis. Stat. §93.90(3)(ar)2
2 Wis. Stat. §823.08(1)
3 Wis. Stat. §§823.08(3)(a) 1 and 2