Court hears clash between livestock facility law and local authority to regulate water quality 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Sept. 9, 2011 – The Wisconsin Supreme Court recently heard oral argument on whether state law preempts local zoning authority to regulate new and expanded livestock operations.

The Town of Magnolia (located within in Rock County) and a group of local residents petitioned the supreme court for review of an appeals court decision in favor Larson Acres, Inc. (Larson), a large-scale dairy farm that wanted to expand its dairy farming operations.

Larson applied to the town for a conditional use permit to build a heifer facility that would house 1,500 “animal units.” Noting that increased manure could elevate nitrate levels and impact surrounding water quality levels, the town approved the permit but attached conditions to minimize the build-up of nitrates.

Larson objected to a number of conditions and appealed to the state’s livestock facility siting review board (board). The board was established to hear grievances pursuant to Wisconsin’s livestock facility siting laws, Wis. Stat. section 93.90, enacted to provide uniform regulation.

The board determined that the town’s conditions violated section 93.90 because they exceeded standards adopted in regulations – which contain runoff management, nutrient management, and waste storage provisions – even though municipalities had a preexisting authority to enact zoning ordinances in the interests of health, safety, and welfare.

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. However, the appeals court ruled in Adams et. al. v. Larson Acres, 2010 WI App 88, that section 93.90 preempted the town’s authority to regulate in this area.

The supreme court is asked to resolve the conflict between the livestock facility siting laws and regulation with local zoning authority. At oral argument before the supreme court, the town’s lawyer argued that uniformity in regulation was not meant to eradicate local authority.

He said the Legislature envisioned uniformity for “how” the facilities are sited, but left it to local governments – which understand the local landscape and water resources – to decide whether specific conditions should be in place to assure that the public health and safety is protected.

But Larson’s attorney argued that while local governments can enact regulations relating to water quality, “those regulations may not be enforced in the context of a livestock siting permit.”

Wisconsin Prosperity case 

This past week, the Wisconsin Supreme Court also heard oral argument in a high-profile case relating to campaign finance regulations. In Wisconsin Prosperity Network, et al. v. Gordon Myse, et. al., the petitioners seek to invalidate amendments to Wis. Admin. Code § GAB 1.28.

In general, organizations and individuals are subject to GAB 1.28 if they make contributions, accept contributions, or make disbursements “for a political purpose.” The amendments relate to the types of “communication” considered to be made “for political purposes.”

Petitioners say the Wisconsin Government Accountability Board, charged with issuing and enforcing the system of laws regulating elections, exceeded its authority in amending the regulations and the amendments violate the First Amendment. Note: The GAB amendments are not currently being enforced because of a temporary injunction issued by the supreme court.