Wisconsin Laws Give Significant Power to Some in Agriculture

The Wisconsin Supreme Court was recently asked to interpret the 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. The town in this 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 facility appealed the decision and the imposition of additional requirements to the Siting Board. The Siting Board determined most of the challenged conditions exceeded the town’s authority under the statute and modified the application’s approval to remove the conditions. The town appealed. Eventually, the issue made its way to the Supreme Court.

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 concerning issues not addressed by state law. 

The Court determined that the Siting Law involved issues of both statewide and local concern. Because of the dual concerns, local governments can regulate the issue, but are limited to enacting ordinances that complement state laws and do not conflict with state law.  In this instance, however, the Siting Law contained language expressly reserving to the state the ability to legislate conditions for livestock facilities to ensure uniform state standards. Because of this, local governments are generally prohibited from regulating the facilities. 

The Court did find an exception for local governments to have some regulatory control. The legislature permitted local governments to disapprove a livestock facility in their jurisdiction under very limited circumstances. 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.

A dissent was filed in the case. The dissenting Justice argued that the complex Siting Law did not expressly preempt local control over livestock facilities. The dissent also argued that the majority opinion was illogical because it voided the town’s regulations while also stating that local authorities could regulate livestock facilities. The dissent disagreed that the Siting Law requires approval of permits by local governments except for very limited conditions as stated by the Court. The dissent also would have upheld the town’s conditions because they were imposed to protect water quality standards, which the town had the power to regulate outside the Siting Law.

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 complained of 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.

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.)

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 CAFO or other large operation that chooses to conduct itself in a disagreeable manner. While the purpose of these statutes is to ensure agricultural operations can continue to operate without concerns of inconsistent standards or urban sensitivities, the result can be unfair to small agricultural operators having the misfortune of being located near an inconsiderate operator.

As an example, I recently received a call from a woman from Wisconsin. She and her family had operated a family farm for quite a while. They lived across the street from another farm that was purchased by a large operator who did not live on site. The operator kept adding large grain bins to the property directly across the street from the woman’s home. Her family now deals with increased semi-truck traffic, dust and debris, and the constant sound of dryers. The woman asked her neighbor to make some concessions because the activities were disrupting her family. The operator told her he didn’t have to do anything because she couldn’t do anything about it under the law. She was quite upset when she found out he was right. 

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. The Wisconsin Supreme Court’s decision is Adams v. State of Wisconsin Livestock Facilities Siting Review Bd.,No. 2009AP608, 2012 Wisc. LEXIS 381 (Wisc. Sup. Ct. Jul. 11, 2012).