AB868: Bill Text

5. The proposed new or expanded livestock facility will have 500 or more animal units and violates a local setback requirement that is less stringent than a setback requirement in the state standards.

6. 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 the political subdivision adopted before July 19, 2003, and violates a state standard promulgated by DATCP under the bill that is incorporated in the political subdivision's ordinances.

7. 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 the political subdivision adopted before July 19, 2003, and violates a local requirement that is more stringent than a state standard if the political subdivision adopts the requirement by ordinance before the operator asks for approval of the siting or expansion and bases the requirement on scientific findings of fact that show that the requirement is necessary to protect public health or safety.

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 the political subdivision adopted before July 19, 2003, and violates a local setback requirement that is less stringent than a setback requirement in the state standards.

9. The proposed new or expanded livestock facility violates a shoreland, construction site erosion control and stormwater management, or floodplain zoning ordinance.

10. The proposed new or expanded livestock facility violates a state or local building or sanitary code or other generally applicable ordinance.

The bill provides that a political subdivision may not prohibit a type of livestock facility in an agricultural zoning district based on number of animal units if smaller facilities of the same type are allowed in the district, unless the political subdivision also has an agricultural zoning district in which that type of facility is allowed without respect to size. The bill also prohibits a political subdivision from enacting or enforcing a zoning ordinance with a category of agricultural district in which livestock facilities are prohibited unless the political subdivision bases the prohibition on findings of fact related to health and safety.

Conditions for conditional use permits

The bill provides generally that if a political subdivision requires a conditional use permit for the siting or expansion of certain livestock facilities it must require compliance with the applicable state standards as a condition of issuing the conditional use permit. The livestock facilities to which this requirement applies are those that will have more than 500 animal units and those that will have fewer than 500 animal units but that will exceed a size threshold for obtaining a conditional use permit that was incorporated into the political subdivision's ordinances before July 19, 2003. A political subdivision may condition the issuance of the permit on a local setback requirement that is less stringent than a setback requirement in the state standards. A political subdivision may apply a more stringent requirement than the state standards if the political subdivision adopts the requirement by ordinance before the operator asks for approval of the siting or expansion and bases the requirement on scientific findings of fact that show that the requirement is necessary to protect public health or safety.

Political subdivision procedure

The bill requires that, within 45 days after a person applies to site or expand a livestock facility, the political subdivision notify the applicant whether the application is complete and, if not, what additional information is needed to complete the application. A political subdivision is required to make a record of its decision making on an application, including a recording of any hearing held on the application. The bill requires the political subdivision to base its decision on an application to site or expand a livestock facility on written findings of fact and to make its decision within 90 days after the application is complete, although this period may be extended for good cause.

Review of siting decisions

The bill creates a livestock facility siting review board (LFSRB) with members appointed by the secretary of agriculture, trade and consumer protection, with the advice and consent of the state senate. An aggrieved person may challenge the decision of a political subdivision on an application for approval of a livestock facility siting or expansion on the grounds that the political subdivision incorrectly applied the state standards promulgated by DATCP that are applicable to the siting or expansion or that the political subdivision violated the provisions described above related to siting and expansion of livestock facilities, by requesting LFSRB to review the decision. An aggrieved person is a person who applied for approval of a livestock facility siting or expansion, a person who lives within two miles of the proposed livestock facility site, or a person who owns land within two miles of the site.

LFSRB determines whether the challenge is valid based on the evidence in the record made by the political subdivision. An aggrieved person may appeal LFSRB's decision to circuit court and the court also reviews the decision based on the evidence in the record made by the political subdivision. The bill requires the Department of Justice to represent LFSRB in any appeal.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB868, s. 1 Section 1. 15.135 (1) of the statutes is created to read:

AB868,4,5 15.135 (1) Livestock facility siting review board. (a) There is created a livestock facility siting review board which is attached to the department of agriculture, trade and consumer protection under s. 15.03. The board consists of the following members:

AB868,4,7 1. A member representing the interests of towns, selected from a list of names submitted by the Wisconsin Towns Association.

AB868,4,9 2. A member representing the interests of counties, selected from a list of names submitted by the Wisconsin Counties Association.

AB868,4,11 3. A member representing environmental interests, selected from a list of names submitted by environmental organizations.

AB868,4,13 4. A member representing livestock farming interests, selected from a list of names submitted by statewide agricultural organizations.

AB868,4,14 5. One other member.

AB868,4,17 (b) The members under par. (a) shall be nominated by the secretary of agriculture, trade and consumer protection, and with the advice and consent of the senate appointed, for 5-year terms.

AB868, s. 2 Section 2. 93.90 of the statutes is created to read:

AB868,5,3 93.90 Livestock facility siting and expansion. (1) This section is an enactment of statewide concern for the purpose of providing uniform regulation of livestock facilities.

AB868,5,4 (1m) Definitions. In this section:

AB868,5,5 (a) "Animal unit" has the meaning given in s. NR 243.03 (3), Wis. Adm. Code.

AB868,5,7 (b) "Application for approval" means an application for approval of a livestock facility siting or expansion.

AB868,5,8 (c) "Board" means the livestock facility siting review board.

AB868,5,10 (d) "Expansion" means an increase in the number of animals fed, confined, maintained, or stabled.

AB868,5,14 (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.

AB868,5,15 (f) "Political subdivision" means a city, village, town, or county.

AB868,5,22 (2) Department duties. (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.

AB868,5,25 (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:

AB868,6,1 1. Practical and workable.

AB868,6,2 2. Cost-effective.

AB868,6,3 3. Objective.

AB868,6,5 4. Based on available scientific information that has been subjected to peer review.

AB868,6,7 5. Designed to promote the long-term viability of animal agriculture in this state.

AB868,6,9 6. Designed to balance the economic viability of farm operations with protecting natural resources and other community interests.

AB868,6,10 7. Usable by officials of political subdivisions.

AB868,6,12 (c) The department shall review rules promulgated under par. (a) at least once every 4 years.

AB868,6,15 (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).

AB868,6,17 (e) In addition to the rules under par. (a), the department shall promulgate rules that do all of the following:

AB868,6,20 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).

AB868,6,22 2. Specify the information and documentation that must be included in a record of decision making under sub. (4) (b).

AB868,7,2 (3) Political subdivision authority. (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:

AB868,7,4 1. The site is located in a zoning district that is not an agricultural zoning district.

AB868,7,6 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).

AB868,7,8 3. The proposed new or expanded livestock facility violates an ordinance adopted under s. 59.692, 59.693, 60.627, 61.351, 61.354, 62.231, 62.234, or 87.30.

AB868,7,10 4. The proposed new or expanded livestock facility violates a state or political subdivision building or sanitary code or other generally applicable ordinance.

AB868,7,13 5. The proposed new or expanded livestock facility will have 500 or more animal units and violates a state standard under sub. (2) (a) that is incorporated in the political subdivision's ordinances.

AB868,7,16 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:

AB868,7,18 a. Adopts the requirement by ordinance before the applicant files the application for approval.

AB868,7,21 b. Bases the requirement on scientific findings of fact, adopted by the political subdivision, that show that the requirement is necessary to protect public health or safety.

AB868,7,25 7. The proposed new or expanded livestock facility will have 500 or more animal units and violates 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.

AB868,8,6 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) that is incorporated in the political subdivision's ordinances.

AB868,8,12 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:

AB868,8,14 a. Adopts the requirement by ordinance before the applicant files the application for approval.

AB868,8,17 b. Bases the requirement on scientific findings of fact, adopted by the political subdivision, that show that the requirement is necessary to protect public health or safety.

AB868,8,24 10. 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 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.

AB868,9,4 (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:

AB868,9,5 1. A new or expanded livestock facility that will have 500 or more animal units.

AB868,9,9 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.

AB868,9,14 (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.

AB868,9,19 (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:

AB868,9,21 1. Adopts the requirement by ordinance before the applicant files the application for approval.

AB868,9,24 2. Bases the requirement on scientific findings of fact, adopted by the political subdivision, that show that the requirement is necessary to protect public health or safety.

AB868,10,6 (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.

AB868,10,11 (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 findings of fact related to health and safety adopted by the governing body of the political subdivision.

AB868,10,16 (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.

AB868,10,22 (4) Political subdivision procedure. (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.

AB868,11,2 (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.

AB868,11,5 (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).

AB868,11,15 (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.

AB868,11,20 (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.

AB868,11,25 (5) Review of siting decisions. (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 the site at which a livestock facility is proposed to be sited or expanded, or a person who owns land within 2 miles of the site at which a livestock facility is proposed to be sited or expanded.

AB868,12,11 (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.

AB868,12,18 (c) Upon receiving a request under par. (b), 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.

AB868,12,23 (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.

AB868,13,2 (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 stay the effect of a decision of the board that the application for approval of a livestock facility siting or expansion complies with the state standards under sub. (2) (a).

AB868,13,5 (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).

AB868, s. 3 Section 3. 165.25 (4) (as) of the statutes is created to read:

AB868,13,9 165.25 (4) (as) The department of justice shall furnish legal services to the livestock facility siting review board in defending appeals under s. 93.90 (5) (e) of decisions of the board.

AB868, s. 4 Section 4. Nonstatutory provisions.

AB868,13,15 (1) Proposed rules. The department of agriculture, trade and consumer protection shall submit in proposed form the rules required under section 93.90 (2) (a) and (e) of the statutes, as created by this act, to the legislative council staff under section 227.15 (1) of the statutes no later than the first day of the 12th month beginning after the effective date of this subsection.

AB868,13,19 (2) Terms of initial board members. Notwithstanding the length of the terms specified for members of the livestock facility siting review board in section 15.135 (1) (b) of the statutes, as created by this act, the initial members shall be appointed for the following terms: