May 29, 2015 – The City of Green Bay’s decision to rescind a conditional use permit for a renewable biomass energy facility was not based on substantial evidence, the Wisconsin Supreme Court has ruled, meaning the city improperly rescinded the permit.

Green Bay initially granted a conditional use permit to the Oneida Seven Generations Corporation (Oneida Seven) to build the energy facility. But the city later rescinded the permit, asserting that Oneida Seven made misrepresentations about the project.

Oneida Seven sued, and the circuit court upheld the city’s decision to rescind. But an appeals court reversed, concluding the city did not present substantial evidence to conclude that Oneida Seven engaged in misrepresentation to obtain the permit.

In Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50 (May 29, 2015), a Wisconsin Supreme Court majority (6-1) affirmed the appeals court.

“[B]ased on the evidence presented, the City could not reasonably conclude that the statements by Oneida Seven’s representatives to the City government regarding the proposed facility’s emissions and hazardous materials, its stacks, and its technology were misrepresentations,” wrote Justice Ann Walsh Bradley for the majority.

The Permit Process

Oneida Seven’s permit application, with a 149-page report, explained how the facility would transform solid waste into energy through a gasification system, with blueprints for the facility and a section on emissions and the environmental permits required.

Oneida Seven representatives – including Chief Executive Officer Kevin Cornelius, the project engineer, and the project manager – further explained the facility and its processes at an open meeting before Green Bay’s Plan Commission.

Members of the Plan Commission asked specific questions about the gasification process, the emissions and toxins produced, and the representatives responded.

The Plan Commission voted unanimously to recommend approval if the facility complied with all local regulations and state and federal regulations on air and water quality.

Next, Green Bay’s Common Council took up the matter. The Oneida Seven representatives again answered questions from members of the council.

The Common Council approved the permit. But after complaints from the public and other groups, the Common Council directed the Plan Commission hold a hearing to determine of Oneida Seven made misrepresentations in pitching the project.

For instance, Cornelius was accused of saying the process would produce zero emissions and the facility would not have “smokestacks,” but the gasification process would produce emissions and the facility would have “stacks” for exhaust.

The Plan Commission found no misrepresentations and relayed the findings to the Common Council. But a motion to approve the Plan Commission’s decision failed.

One alderman moved to rescind the conditional use permit, alleging Cornelius knowingly made false statements in responding to highly important questions about the public health, safety, and environmental aspects of the project. The motion passed 7-5.

Decision Not Based on Substantial Evidence

The supreme court majority ruled that the Common Council’s decision to rescind the conditional use permit was not backed by substantial evidence, which is required.

Reviewing, in context, the answers to questions on “stacks,” emissions, and whether the proposed facility would be using new technology, the supreme court ruled the record did not support claims that Cornelius made misrepresentations warranting a rescind.

“Despite the City’s claim that Cornelius made intentional misrepresentations to government entities in response ‘to questions or concerns related to the public safety and health aspects of the project and the project’s impact on the city’s environment, we could find no such misrepresentations in the record,” Justice Bradley wrote.

Dissent

Chief Justice Patience Roggensack was the lone dissenter. She said the Common Council’s factual findings were entitled to a presumption of correctness and validity and must be sustained “if any reasonable view of the evidence supports them.”

“I conclude that Oneida Seven has failed to meet its burden under certiorari review because a reasonable view of the presentations made … when Oneida obtained the conditional use permit, supports the Common Council’s finding that it was misled.”