93.73(13)(13) Council. The department shall appoint a council under s. 15.04 (1) (c) to advise the department on the administration of this section. 93.73(14)(14) Rules. The department shall promulgate a rule, consistent with sub. (1m) (i), relating to allowable transaction costs for the program under this section. 93.8093.80 Arsenic in wood. The department, jointly with the department of safety and professional services, shall review scientific evidence to determine whether there is a substantial likelihood that wood treated with copper, chromium, and arsenic is harmful to the environment or to human health. 93.80 HistoryHistory: 2001 a. 16; 2011 a. 32. 93.9093.90 Livestock facility siting and expansion. 93.90(1)(1) Statewide concern. This section is an enactment of statewide concern for the purpose of providing uniform regulation of livestock facilities. 93.90 NoteNOTE: The definition of “animal unit” at NR 243.03 (3), Wis. Adm. Code, was repealed and a definition of “animal unit” was recreated at NR 243.03 (5) by CR 07-075.
93.90(1m)(b)(b) “Application for approval” means an application for approval of a livestock facility siting or expansion. 93.90(1m)(c)(c) “Board” means the livestock facility siting review board. 93.90(1m)(d)(d) “Expansion” means an increase in the number of animals fed, confined, maintained, or stabled. 93.90(1m)(e)(e) “Livestock facility” means a feedlot or facility, other than a pasture, where animals used in the production of food, fiber, or other animal products are or will be fed, confined, maintained, or stabled for a total of 45 days or more in any 12-month period. “Livestock facility” does not include an aquaculture facility. 93.90(1m)(f)(f) “Political subdivision” means a city, village, town, or county. 93.90(2)(a)(a) For the purposes of this section, the department shall promulgate rules specifying standards for siting and expanding livestock facilities. In promulgating the rules, the department may incorporate by cross-reference provisions contained in rules promulgated under ss. 92.05 (3) (c) and (k), 92.14 (8), 92.16, and 281.16 (3) and ch. 283. The department may not promulgate rules under this paragraph that conflict with rules promulgated under s. 92.05 (3) (c) or (k), 92.14 (8), 92.16, or 281.16 (3) or ch. 283. 93.90(2)(b)(b) In promulgating rules under par. (a), the department shall consider whether the proposed standards, other than those incorporated by cross-reference, are all of the following: 93.90(2)(b)4.4. Based on available scientific information that has been subjected to peer review. 93.90(2)(b)5.5. Designed to promote the growth and viability of animal agriculture in this state. 93.90(2)(b)6.6. Designed to balance the economic viability of farm operations with protecting natural resources and other community interests. 93.90(2)(c)(c) The department shall review rules promulgated under par. (a) at least once every 4 years. 93.90(2)(d)(d) The secretary shall appoint a committee of experts to advise the department on the promulgation of the rules under par. (a) and on the review of rules under par. (c). 93.90(2)(e)(e) In addition to the rules under par. (a), the department shall promulgate rules that do all of the following: 93.90(2)(e)1.1. Specify the information and documentation that must be provided in an application for approval in order to demonstrate that a livestock facility siting or expansion complies with applicable state standards under sub. (2) (a). 93.90(2)(e)2.2. Specify the information and documentation that must be included in a record of decision making under sub. (4) (b). 93.90(3)(3) Political subdivision authority. 93.90(3)(a)(a) Notwithstanding ss. 33.455, 59.03 (2) (a), 59.69, 60.10 (2) (i), 60.61, 60.62, 61.34 (1), 61.35, 62.11 (5), 62.23, 66.0415, 92.07 (2), 92.11, and 92.15 (3) (a), a political subdivision may not disapprove or prohibit a livestock facility siting or expansion unless at least one of the following applies: 93.90(3)(a)1.1. The site is located in a zoning district that is not an agricultural zoning district. 93.90(3)(a)2.2. The site is located in an agricultural zoning district in which the proposed new or expanded livestock facility is prohibited, subject to pars. (b) and (c). 93.90(3)(a)4.4. The proposed new or expanded livestock facility violates a building, electrical, or plumbing code that is consistent with the state building, electrical, or plumbing code for that type of facility. 93.90(3)(a)5.5. The proposed new or expanded livestock facility will have 500 or more animal units and violates a state standard under sub. (2) (a). 93.90(3)(a)6.6. The proposed new or expanded livestock facility will have 500 or more animal units and violates a requirement that is more stringent than the state standards under sub. (2) (a) if the political subdivision does all of the following: 93.90(3)(a)6.a.a. Adopts the requirement by ordinance before the applicant files the application for approval. 93.90(3)(a)6.b.b. Bases the requirement on reasonable and scientifically defensible findings of fact, adopted by the political subdivision, that clearly show that the requirement is necessary to protect public health or safety. 93.90(3)(a)8.8. The proposed new or expanded livestock facility will have fewer than 500 animal units but will exceed a size threshold for requiring a special exception or conditional use permit that was incorporated into the political subdivision’s ordinances before July 19, 2003, and the proposed new or expanded livestock facility violates a state standard under sub. (2) (a). 93.90(3)(a)9.9. The proposed new or expanded livestock facility will have fewer than 500 animal units but will exceed a size threshold for requiring a special exception or conditional use permit that was incorporated into the political subdivision’s ordinances before July 19, 2003, and the proposed new or expanded livestock facility violates a requirement that is more stringent than the state standards under sub. (2) (a) if the political subdivision does all of the following: 93.90(3)(a)9.a.a. Adopts the requirement by ordinance before the applicant files the application for approval. 93.90(3)(a)9.b.b. Bases the requirement on reasonable and scientifically defensible findings of fact, adopted by the political subdivision, that clearly show that the requirement is necessary to protect public health or safety. 93.90(3)(ae)(ae) A political subdivision that requires a special exception or conditional use permit for the siting or expansion of any of the following livestock facilities shall require compliance with the applicable state standards under sub. (2) (a) as a condition of issuing the special exception or conditional use permit: 93.90(3)(ae)1.1. A new or expanded livestock facility that will have 500 or more animal units. 93.90(3)(ae)2.2. A new or expanded livestock facility that will have fewer than 500 animal units but that will exceed a size threshold for requiring a special exception or conditional use permit that was incorporated into the political subdivision’s ordinances before July 19, 2003. 93.90(3)(am)(am) Notwithstanding par. (ae), a political subdivision may apply to a new or expanded livestock facility described in par. (ae) 1. or 2., as a condition of issuing a special exception or conditional use permit, a setback requirement that is less stringent than a setback requirement under sub. (2) (a) if the setback requirement is incorporated in the political subdivision’s ordinances as a numerical standard. 93.90(3)(ar)(ar) Notwithstanding par. (ae) a political subdivision may apply to a new or expanded livestock facility described in par. (ae) 1. or 2., as a condition of issuing a special exception or conditional use permit, a requirement that is more stringent than the state standards under sub. (2) (a) if the political subdivision does all of the following: 93.90(3)(ar)1.1. Adopts the requirement by ordinance before the applicant files the application for approval. 93.90(3)(ar)2.2. Bases the requirement on reasonable and scientifically defensible findings of fact, adopted by the political subdivision, that clearly show that the requirement is necessary to protect public health or safety. 93.90(3)(b)(b) Notwithstanding ss. 59.69, 60.61, 60.62, 61.35, and 62.23, a political subdivision may not prohibit a type of livestock facility in an agricultural zoning district based on number of animal units if livestock facilities of that type with fewer animal units are allowed in that zoning district, unless the political subdivision also has an agricultural zoning district in which livestock facilities of that type are permitted or conditional uses without respect to number of animal units. 93.90(3)(c)(c) Notwithstanding ss. 59.69, 60.61, 60.62, 61.35, and 62.23, a political subdivision may not enact or enforce a zoning ordinance with a category of agricultural district in which livestock facilities are prohibited unless the political subdivision bases that prohibition on reasonable and scientifically defensible findings of fact, adopted by the political subdivision, that clearly show that the prohibition is necessary to protect public health or safety. 93.90(3)(d)(d) Notwithstanding ss. 92.15 (4) and 281.16 (3) (e), a political subdivision that requires compliance with state standards under sub. (2) (a) as a condition of issuing a special exception or conditional use permit for an expanded livestock facility is not required to determine that cost-sharing is available to the operator of the livestock facility for facilities or practices needed to comply with those standards if the livestock facility will have 500 or more animal units. 93.90(3)(e)(e) Notwithstanding ss. 59.69, 60.61, 60.62, 61.35, and 62.23, a political subdivision may not enact a requirement that a person obtain a special exception or conditional use permit for the expansion of a livestock facility that exists when the requirement takes effect, except that a political subdivision may enact a requirement that a person obtain a special exception or conditional use permit for the expansion of a livestock facility that exists when the requirement takes effect if the requirement applies only when the number of animal units that the livestock facility will have after expansion will exceed by more than 20 percent the largest number of animal units that were at the livestock facility for at least 90 days in the 12-month period before the requirement takes effect. 93.90(3)(f)(f) For the purposes of this subsection, the number of animal units that a livestock facility will have is the largest number of animal units that will be fed, confined, maintained, or stabled at the livestock facility on at least 90 days in any 12-month period. 93.90(4)(4) Political subdivision procedure. 93.90(4)(a)(a) No later than 45 days after a political subdivision receives an application for approval, the political subdivision shall notify the applicant whether the application for approval is complete and, if it is not complete, what information is needed to complete the application for approval. As soon as the applicant has provided all of the required information, the political subdivision shall notify the applicant that the application for approval is complete. 93.90(4)(b)(b) A political subdivision shall make a record of its decision making on an application for approval, including a recording of any public hearing, copies of documents submitted at any public hearing, and copies of any other documents provided to the political subdivision in connection with the application for approval. 93.90(4)(c)(c) A political subdivision shall base its decision on an application for approval on written findings of fact that are supported by the evidence in the record under par. (b). 93.90(4)(d)(d) Except as provided in par. (e), a political subdivision shall approve or disapprove an application for approval no more than 90 days after the day on which it notifies the applicant that the application for approval is complete. If an applicant complies with the rules promulgated under sub. (2) (e) 1. and the information and documentation provided by the applicant is sufficient to establish, without considering any other information or documentation, that the application complies with applicable requirements for approval, the political subdivision shall approve the application unless the political subdivision finds, based on other clear and convincing information or documentation in the record, that the application does not comply with applicable requirements. 93.90(4)(e)(e) A political subdivision may extend the time limit in par. (d) if the political subdivision needs additional information to determine whether to approve or deny the application for approval, if the applicant makes a material modification to the application for approval, or for other good cause specified in writing by the political subdivision. 93.90(5)(a)(a) In this subsection “aggrieved person” means a person who applied to a political subdivision for approval of a livestock facility siting or expansion, a person who lives within 2 miles of a livestock facility that is proposed to be sited or expanded, or a person who owns land within 2 miles of a livestock facility that is proposed to be sited or expanded. 93.90(5)(b)(b) An aggrieved person may challenge the decision of a political subdivision on an application for approval on the grounds that the political subdivision incorrectly applied the state standards under sub. (2) (a) that are applicable to the livestock facility siting or expansion or violated sub. (3), by requesting the board to review the decision. An aggrieved person is not required to exhaust the political subdivision’s administrative remedies before requesting review by the board. An aggrieved person shall request a review under this paragraph within 30 days after the political subdivision approves or disapproves the application for approval or, if the aggrieved person chooses to exhaust the political subdivision’s administrative remedies, within 30 days after the final decision in the political subdivision’s administrative review process. 93.90(5)(bm)(bm) Upon receiving a request under par. (b), the board shall notify the political subdivision of the request. The political subdivision shall provide a certified copy of the record under sub. (4) to the board within 30 days after the day on which it receives the notice. 93.90(5)(c)(c) Upon receiving the certified copy of the record under par. (bm), the board shall determine whether the challenge is valid. The board shall make its decision without deference to the decision of the political subdivision and shall base its decision only on the evidence in the record under sub. (4) (b). In a case that involves the application of requirements related to water quality, the board shall consult with the department of agriculture, trade and consumer protection or with the department of natural resources concerning the application of the requirements related to water quality. The board shall make its decision within 60 days after the day on which it receives the certified copy of the record under par. (bm), except that the board may extend this time limit for good cause specified in writing by the board. 93.90(5)(d)(d) If the board determines that a challenge is valid, the board shall reverse the decision of the political subdivision. The decision of the board is binding on the political subdivision, subject to par. (e). If a political subdivision fails to comply with a decision of the board that has not been appealed under par. (e), an aggrieved person may bring an action to enforce the decision. 93.90(5)(e)(e) An aggrieved person or the political subdivision may appeal the decision of the board to circuit court. The filing of an appeal does not in itself stay the effect of a decision of the board. 93.90(5)(f)(f) A circuit court to which a decision of the board is appealed under par. (e) shall review the decision of the board based on the evidence in the record under sub. (4) (b). 93.90 Cross-referenceCross-reference: See also ch. ATCP 51, Wis. adm. code. 93.90 AnnotationThe Livestock Facility Siting Review Board may reverse individual improper conditions under sub. (5) without reversing a siting or expansion approval in whole, at least in the absence of an argument by the approving municipality or other interested party that the defective conditions could be replaced with proper conditions. Adams v. State, 2010 WI App 88, 327 Wis. 2d 676, 787 N.W.2d 941, 09-0608. 93.90 AnnotationBy requiring the promulgation of state standards for livestock facility siting, the legislature expressly withdrew, with limited exceptions, the power of political subdivisions to enforce varied and inconsistent livestock facility siting standards, to disapprove livestock facility siting permits, and to condition the grant of a livestock facility siting permit on any requirement other than the state standards. Adams v. State, 2012 WI 85, 342 Wis. 2d 444, 820 N.W.2d 404, 09-0608. 93.90 AnnotationSub. (4) (d) provides a clear stand-alone basis for permit denial separate and apart from sub. (3) (a). Sub. (4) (d) and ss. ATCP 51.30 and 51.34, Wis. Adm. Code, establish that one requirement an applicant seeking a permit under this section must comply with in order to obtain approval for a permit is that the application must provide credible information showing that the proposed siting or expansion will comply with the state standards the Department of Agriculture, Trade and Consumer Protection promulgates under sub. (2) (a) and (e) 1. Failure to do so provides a political subdivision with the authority to deny a permit—regardless of whether any of the enumerated exceptions set forth in sub. (3) (a) applies. Town of Ledgeview v. Livestock Facility Siting Review Board, 2022 WI App 58, 405 Wis. 2d 269, 983 N.W.2d 685, 21-0240. 93.90 AnnotationA harmonized reading of this section and related administrative code provisions requires that a court must first determine whether an application for a new or expanded livestock facility complies with sub. (4) (d) and ss. ATCP 51.30 and 51.34, Wis. Adm. Code, prior to considering whether any of the sub. (3) (a) exceptions applies. Town of Ledgeview v. Livestock Facility Siting Review Board, 2022 WI App 58, 405 Wis. 2d 269, 983 N.W.2d 685, 21-0240. 93.90 AnnotationUnder sub. (4) (d) and ss. ATCP 51.30 and 51.34, Wis. Adm. Code, the credibility of the information provided in an application must be determined within the context of all clear and convincing information and documentation that is part of the record. In this case, the Livestock Facility Siting Review Board did not err in denying the farm’s application on credibility grounds based on the applicant’s history of past violations of laws and the applicant’s refusal to allow the political subdivision to inspect the premises as part of the application process. Town of Ledgeview v. Livestock Facility Siting Review Board, 2022 WI App 58, 405 Wis. 2d 269, 983 N.W.2d 685, 21-0240. 93.90 AnnotationWisconsin’s New Livestock Facility Siting Rule. Lamb. Wis. Law. Feb. 2007.
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