ATCP 51.34(1)(b)
(b) The application contains sufficient credible information to show, in the absence of clear and convincing information to the contrary, that the proposed livestock facility meets or is exempt from the standards in subch.
II. To the extent that a standard under subch.
II vests discretion in a political subdivision, the political subdivision may exercise that discretion.
ATCP 51.34(2)
(2) Denying an application. A political subdivision may deny an application under
s. ATCP 51.30 if any of the following apply:
ATCP 51.34(2)(b)
(b) The political subdivision finds, based on other clear and convincing information in the record under
s. ATCP 51.36, that the proposed livestock facility fails to comply with an applicable standard under subch.
II.
ATCP 51.34(3)(a)(a) A political subdivision shall issue its decision under
sub. (1) or
(2) in writing. The decision shall be based on written findings of fact included in the decision. The findings of fact shall be supported by evidence in the record under
s. ATCP 51.36. Findings may be based on presumptions created by this chapter.
ATCP 51.34 Note
Note: The Wisconsin Livestock Facility Siting Law, s.
93.90, Stats., provides a new option for “aggrieved persons" to appeal a local livestock facility siting decision. The law does not limit any existing right that any person may have to challenge a local decision in court.
ATCP 51.34 Note
Under the Livestock Facility Siting Law, an “aggrieved person" may appeal a local decision to the state Livestock Facility Siting Review Board (“Board"). An “aggrieved person" means an applicant for local approval, or a person who resides or owns land within 2 miles of the proposed livestock facility.
ATCP 51.34 Note
An “aggrieved person" may appeal a political subdivision's decision within 30 days after the political subdivision issues the decision (or, if the “aggrieved person" pursues a local administrative appeal process, within 30 days after that process is complete). The “aggrieved person" may challenge the local decision on the grounds that it incorrectly applied livestock facility siting standards under this chapter, or violated the Livestock Facility Siting Law.
ATCP 51.34 Note
When an appeal is filed, the Board must notify the political subdivision. Within 30 days after the political subdivision receives this notice, it must file a certified copy of its decision making record under s.
ATCP 51.36 with the Board. The Board must review the local decision based on the evidence in the local record (the Board will not hold a new hearing or accept new evidence). The Board must make its decision within 60 days after it receives the certified local record (it may extend the deadline for good cause).
ATCP 51.34 Note
If the Board determines that the challenge is valid, it must reverse the decision of the political subdivision. The Board's decision is binding on the political subdivision (once any court appeal of the decision is completed, or the appeal time lapses). If the political subdivision fails to comply with the Board's decision, an “aggrieved person" may bring a court action to enforce the Board's decision.
ATCP 51.34 Note
An “aggrieved person" or the political subdivision may appeal the Board's decision to circuit court. The circuit court must review the Board's decision based on the evidence in the local record.
ATCP 51.34(3)(b)
(b) If a political subdivision grants an application for local approval, the political subdivision shall issue the local approval to the applicant in writing. The local approval shall include a duplicate copy of the approved application, marked “approved." The duplicate copy shall include all of the worksheets, maps and other attachments included in the application, except that it is not required to include engineering design specifications.
ATCP 51.34 Note
Note: A successful applicant may wish to record the approval documentation under par. (b) with the register of deeds, and convey the documentation to any subsequent purchaser of the livestock facility. Among other things, the documentation establishes “odor score" reference points for future expansions.
See s.
ATCP 51.14 (6).
ATCP 51.34(4)
(4) Terms of approval. An approval under
sub. (1) is conditioned on the operator's compliance with subch.
II and representations made in the application for approval. This chapter does not limit a political subdivision's authority to do any of the following:
ATCP 51.34(4)(b)
(b) Withdraw an approval, or seek other redress provided by law, if any of the following apply:
ATCP 51.34(4)(b)1.
1. The operator materially misrepresented relevant information in the application for local approval.
ATCP 51.34(4)(b)2.
2. The operator, without authorization from the political subdivision, fails to honor relevant commitments made in the application for local approval. A political subdivision may not withhold authorization, under this subdivision, for reasonable changes that maintain compliance with the standards in subch.
II.
ATCP 51.34(4)(b)3.
3. The livestock facility fails to comply with applicable standards in subch.
II.
ATCP 51.34 Note
Note: A political subdivision should exercise sound judgment in deciding whether to take compliance action under sub. (4) (b). The political subdivision may consider extenuating circumstances, such as adverse weather conditions, that may affect an operator's ability to comply. A political subdivision may also consider the nature and seriousness of the violation, whether the violation was intentional or accidental, the operator's compliance history, consistency of enforcement, and whether the problem can be resolved without formal enforcement. Before taking compliance action, a political subdivision should give the operator notice and a reasonable opportunity to demonstrate compliance.
ATCP 51.34(5)(a)(a) Within 30 days after a political subdivision grants or denies an application under this section, or withdraws an approval under
sub. (4) (b) or
s. ATCP 51.08 (2), the political subdivision shall do all of the following:
ATCP 51.34(5)(a)2.
2. File with the department a copy of the final application granted or denied, if the political subdivision has granted or denied an application under this section. The copy shall include all of the worksheets, maps and other attachments included in the application, except that it is not required to include engineering design specifications.
ATCP 51.34(5)(a)3.
3. File with the department a copy of the political subdivision's final notice or order withdrawing a local approval under
sub. (4) (b) or
s. ATCP 51.08 (2), if the political subdivision has withdrawn a local approval.
ATCP 51.34(5)(b)
(b) A political subdivision shall submit the information required under
pars. (a) and
(b), by mail or e-mail, to the following address:
Wisconsin Department of Agriculture, Trade
and Consumer Protection
Agricultural Resource Management Division
Bureau of Land and Water Resources
P.O. Box 8911
Madison, WI 53708-8911
E-mail:
livestocksiting@wisconsin.govATCP 51.34(5)(c)
(c) Failure to comply with
par. (a) or
(b) does not invalidate a political subdivision's decision to grant or deny an application for local approval, or to withdraw a local approval.
ATCP 51.34 History
History: CR 05-014: cr.
Register April 2006 No. 604, eff. 5-1-06;
correction in (5) (b) made under ss. 13.92 (4) (b) 6. and 35.17, Stats., Register May 2020 No. 773. ATCP 51.36
ATCP 51.36 Record of decision-making. A political subdivision shall keep a complete written record of its decision-making related to an application under
s. ATCP 51.30. The political subdivision shall keep the record for at least 7 years following its decision. The record shall include all of the following:
ATCP 51.36(2)
(2) A copy of any notice under
s. ATCP 51.30 (5), and copies of any other notices or correspondence that the political subdivision issues in relation to the application.
ATCP 51.36(3)
(3) A record of any public hearing related to the application. The record may be in the form of an electronic recording, a transcript prepared from an electronic recording, or a direct transcript prepared by a court reporter or stenographer. The record shall also include any documents or evidence submitted by hearing participants.
ATCP 51.36 Note
Note: Municipal law normally determines whether a hearing is required.
See, generally, ch.
68, Stats.
ATCP 51.36(4)
(4) Copies of any correspondence or evidentiary material that the political subdivision considered in relation to the application.
ATCP 51.36(5)
(5) Minutes of any board or committee meeting held to consider or act on the application.
ATCP 51.36(7)
(7) Other documents that the political subdivision prepared to document its decision or decision-making process.
ATCP 51.36(8)
(8) A copy of any local ordinance cited in the decision.
ATCP 51.36 History
History: CR 05-014: cr.
Register April 2006 No. 604, eff. 5-1-06.
