By ERIKA ECKLEY
The Wisconsin Supreme Court was recently asked to interpret that state’s Siting Law, which was enacted in 2004 to regulate livestock facility siting and expansion. At issue was whether local governments could condition approval of an application by requiring stricter regulations than under state law. Wisconsin laws give significant power to agricultural operations.
Attorneys and livestock interests in Iowa are very interested in this topic. Iowa courts have previously ruled that state laws in Iowa preempt local governments on livestock siting issues — Worth County Friends of Agriculture vs. Worth County, 688 N.W.2d 257 (Iowa 2004).
The town in the Wisconsin case added a requirement to a siting ordinance that approvals required additional protections for groundwater. After a hearing to determine whether the facility’s permit would be granted, the town allowed the permit with additional conditions to protect local water sources.
The court was asked to determine whether the Siting Law pre-empted local authority to regulate livestock facilities. The court examined the issue in the context of the state’s Constitutional Home Rule authority, which provides that political subdivisions retain the ability to make laws to govern their territory in issues not addressed by state law.
The court said the Siting Law contained language giving the state exclusive control over legislation affecting livestock facilities’ siting to ensure uniform state standards. Local governments are generally prohibited from regulating the facilities.
Court cites an exception
The court did find an exception for local governments to have some regulatory control. The exception allows local governments to adopt an ordinance with additional requirements for livestock operators so long as the ordinance is adopted before a facility makes an application. The requirements, however, must be based on “reasonable and scientifically defensible findings of fact adopted by the local government” to ensure operators have advance notice of additional requirements in the jurisdiction and they are not subject to arbitrary conditions imposed by the local entity.
In this situation, however, the court held that the town did not have specific findings of fact based on scientific principles in enacting the ordinance to protect water quality and imposition of additional conditions on the facility, so the conditions were not permitted. The ruling can be found in Adams v. State of Wisconsin Livestock Facilities Siting Review Board, No. 2009AP608, 2012 Wisc. LEXIS 381 (Wis. Sup. Ct. Jul. 11, 2012).
In addition to the Siting Law, Wisconsin has a very strict “Right to Farm Law” (Wis. Stat. § 823.08), which, for all practical purposes, eliminates any nuisance claims against an agricultural operator. The law requires aggrieved neighbors to establish that the activities create a “substantial and unreasonable interference with the use and enjoyment” of the neighbor’s property, but also that the agricultural use poses a “substantial threat” to public health and safety. This requires neighbors to essentially prove a public nuisance, which is not easy.
Strong right-to-farm law
In addition, to prove a nuisance, a person may not move into an agricultural community and then complain about existing operations as a nuisance, but a significant change in the size or scope of an agricultural operation could constitute a nuisance. Wisconsin’s law, however, does not recognize a change in size or scope of activities for nuisance purposes.
For instance, if agricultural operations were conducted without interruption at the time the complaining farmer purchased the property, changes to the neighbor’s operation from a small, family dairy to a large corporate farm with multiple confinement facilities many years later would not constitute a nuisance. Further, if the farmer is successful in bringing a claim, the statute provides very limited remedies, but if the court concludes no nuisance under the statute exists, the farmer must pay all of the defendant’s litigation expenses. (See Hanson, Andrew C., Brewing Land Use Conflicts: Wisconsin’s Right to Farm Law, Wisconsin Lawyer Vol. 75, No. 12 December 2002 at www.wisbar.org/AM/
Together, Wisconsin’s law provides uniform requirements for confinement operations without input from local communities and provides unlimited protection from suit from neighbors adversely affected by a concentrated animal feeding operation or other large operation that chooses to conduct itself in a disagreeable manner. While the purpose of these statutes is to ensure ag operations can continue to operate without concerns of inconsistent standards or urban sensitivities, the result can be unfair to small operators having the misfortune of being located near an inconsiderate operator.
There are reasons to have some protections for agricultural uses, but it seems unlikely the Wisconsin Legislature intended to leave family farmers and rural communities without recourse when their ability to live and work on their own land is unreasonably threatened by their own agricultural neighbors.
Eckley is an attorney at the Center for Agricultural Law and Taxation at ISU. Contact her at firstname.lastname@example.org or 515-294-6365.
This article published in the August, 2012 edition of WALLACES FARMER.
All rights reserved. Copyright Farm Progress Cos. 2012.