Dec. 28, 2022 – The state Livestock Facility Siting Board properly affirmed a town’s denial of a farm’s application based on credibility grounds, the Wisconsin Court of Appeals has held.

In Town of Ledgeview v. Ledgeview Farms LLC, 2021AP240 (Nov. 30, 2022), the Court of Appeals District II held that administrative rules promulgated under the livestock facility siting law require the information submitted with a permit application to be credible.

Application and Refusal

On Nov. 5, 2019, Ledgeview Farms LLC (Ledgeview) submitted an application to the Town of Ledgeview (Town) for a permit to expand its livestock facility in Brown County.

The Town notified Ledgeview that town officials would inspect the farm to verify information contained in the Ledgeview’s application. But Ledgeview wouldn’t allow the inspection, even after the town obtained an inspection warrant.

Denial on Credibility Grounds

In March 2019, the Town denied Ledgeview’s application. Among the substantive reasons for denying the application, the Town listed the Farm’s lack of credibility and material representations made by it in the application.

Specifically, the Town said Ledgeview failed to provide credible evidence that it could meet livestock facility standards set forth in state law because of its history of past noncompliance, violations, and disregard for federal, state and local laws.

Additionally, the Town said that Ledgeview’s refusal to allow the inspection harmed the farm’s credibility.

Appeal to State Board

Ledgeview appealed the Town’s denial, under Wis. Stat. section 93.90(5). In June 2019, the Livestock Facility Review Board (Board) affirmed the denial in part.

The Board ruled that the Town had the authority to deny the Ledgeview’s application on the basis of Ledgeview’s credibility as informed by: 1) its history of noncompliance with federal and state laws; 2) and its refusal to allow the Town’s inspection.

Ledgeview appealed the Board’s decision. The Brown County Circuit Court affirmed the Board’s decision and ruled that the Town was entitled to rely on the Ledgeview’s credibility when exercising its discretion on the Ledgeview’s application.

The Farm appealed.

Narrow Grounds for Denial Only?

Ledgeview argued that under the state’s livestock facility siting law, the Town could deny its application only if one of eight narrow substantive exceptions applied.

Because the credibility of an applicant was not among those exceptions, Ledgeview argued, the Town’s denial of the application was invalid. 

Writing for a three-judge panel, Judge Shelley Grogan explained that in Adams v. State Livestock Facility Siting Review Board, 2012 WI 85, 342 Wis. 2d 444, 820 N.W.2d 404, the Wisconsin Supreme Court held that by enacting the livestock facility siting law, the legislature had preempted the authority of municipalities to regulate the siting of livestock facilities.

However, Judge Grogan pointed out, the livestock facility siting permit application was not at issue in Adams.

Role of Administrative Rules

Grogan pointed out that under section 93.90(4)(d), a political subdivision is mandated to approve livestock facility siting application in the absence of one of the eight exceptions in section 93.90(3)(a) only if: 1) the applicant complies with rules adopted under section 93.90(2)(e)1; and 2) the information provided by the applicant is sufficient to establish, without any other information, that the application complies with approval requirements.

Judge Grogan noted that a rule promulgated by the Department of Agriculture, Trade, and Consumer Protection (DATCP) under section 93.90(2)(e)1. requires that the information in a livestock facility siting application “be credible and internally consistent.”

Another DATCP rule, Grogan pointed out, specifies that: 1) the presence of sufficient credible information in the application is a pre-condition for granting a livestock facility siting permit; and 2) a political subdivision may deny a livestock facility siting permit application where the application does not meet all the preconditions.

“A plain reading of section ATCP 51.34(2) thus establishes that a political subdivision has the authority to deny an application if it does not contain credible and internally consistent information establishing that a new or expanded livestock facility will comply with the state standards identified in Wis. Admin. Code ch. ATCP 51 subch. II,” Judge Grogan wrote.

Failure to comply with the application requirements established in the rules promulgated by DATCP, Grogan concluded, allow a political subdivision to deny an application regardless of whether one of the eight substantive exceptions listed in section 93.90(3)(a) applied.

Scope of Credibility

Ledgeview argued that under the DATCP rules, credibility: 1) applied only to the application itself, not to any other information in the record; and 2) must be linked directly to the eight substantive exceptions listed in section 93.90(3)(a).

But, Judge Grogan reasoned, the definition of “credibility’ was not so narrow.

“In the context of evaluating a witness’s testimony, a factfinder is not limited solely to considering a witness’s words, but rather can – and should – consider the witness’s demeanor, tone, motives, conduct, and the context in which the testimony arises,” Grogan wrote.

Accepting the Ledgeview’s argument, Judge Grogan wrote, “would lead to a potentially absurd result wherein an applicant could simply fill out an application indicating its commitment to comply with state standards, despite the applicant having no actual commitment to follow through with what it promised to do in the application materials.”

Grogan concluded that the Town had the authority to deny the Ledgeview’s application on the basis that the application was not credible.

Site Distinction Immaterial

Ledgeview also argued that the law did not allow the Board to consider its past violations of DNR runoff requirements when assessing the credibility of its application, because they were related to a different site than the one that was the subject of permit application.

That distinction was immaterial, Judge Grogan reasoned.

“It would be unreasonable to conclude that the Board must turn a blind eye to the Farm’s past actions and inactions specifically relate to runoff management, a state standard under the Siting Law, in determining whether the information in the application was credible simply because the proposal was for a new site or facility,” Grogan wrote.​