ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2003 ASSEMBLY BILL 868
February 26, 2004 - Offered by
Committee on Agriculture.
AB868-ASA1,1,4
1An Act to create 15.135 (1), 93.90 and 165.25 (4) (as) of the statutes;
relating
2to: the siting and expansion of certain livestock facilities, local zoning
3ordinances relating to livestock facilities, creating a Livestock Facility Siting
4Review Board, and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Livestock facility siting and expansion
This substitute amendment relates to siting and expanding livestock facilities.
A livestock facility is a feedlot or other facility where animals used to produce food,
fiber, or other animal products are kept, except that pastures and aquaculture
facilities are not livestock facilities. Some of the provisions of the substitute
amendment depend on the size of a new or expanded livestock facility, measured by
animal units. An animal unit is a measure related to the amount of waste produced
by different kinds of animals. A beef steer is one animal unit, while a sow is 0.4
animal unit, and a turkey is 0.018 animal unit.
Standards for siting and expansion
The substitute amendment requires the Department of Agriculture, Trade and
Consumer Protection (DATCP) to specify, by rule, standards for siting and expanding
livestock facilities. The substitute amendment authorizes DATCP to incorporate
existing rules related to soil and water conservation, animal waste management, and
nonpoint source water pollution control into the new rules. The substitute
amendment requires DATCP to review the rules at least once every four years and
to get the advice of a committee of experts on the initial rules and on the review of
the rules.
The substitute amendment prohibits a city, village, town, or county (political
subdivision) from disapproving or prohibiting a livestock facility from being sited or
expanded unless at least one of the following conditions applies:
1. The site is located in a zoning district that is not agricultural.
2. The site is located in an agricultural zoning district in which the livestock
facility is prohibited.
3. The proposed new or expanded livestock facility will have 500 or more animal
units and violates a state standard promulgated by DATCP under the substitute
amendment.
4. The proposed new or expanded livestock facility will have 500 or more animal
units 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 reasonable
and scientifically defensible findings of fact that clearly show that the requirement
is necessary to protect public health or safety.
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 substitute
amendment.
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 reasonable and
scientifically defensible scientific findings of fact that clearly show that the
requirement is necessary to protect public health or safety.
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 building,
electrical, or plumbing code that is consistent with a state code.
The substitute amendment 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 substitute amendment 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 reasonable and scientifically
defensible findings of fact that clearly show that the requirement is necessary to
protect public health or safety.
Conditions for conditional use permits
The substitute amendment 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 reasonable and scientifically
defensible findings of fact that clearly show that the requirement is necessary to
protect public health or safety.
The substitute amendment also prohibits a political subdivision from enacting
a requirement that a person obtain a conditional use permit for the expansion of a
livestock facility that exists when the requirement takes effect, except that a political
subdivision may enact such a requirement if the requirement applies only when the
number of animal units that the livestock facility will have after expansion exceeds
by more than 20 percent the number of animal units that the livestock facility has
before expansion.
Political subdivision procedure
The substitute amendment 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 substitute amendment 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 substitute amendment 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, or a person who owns land within
two miles of the proposed livestock facility.
LFSRB determines whether the challenge is valid based on the evidence in the
record made by the political subdivision. LFSRB must make its decision within 60
days of receiving a copy of the record from the political subdivision, although this
period may be extended for good cause. 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 substitute amendment requires
the Department of Justice to represent LFSRB in any appeal.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB868-ASA1,4,52
15.135
(1) Livestock facility siting review board. (a) There is created a
3livestock facility siting review board which is attached to the department of
4agriculture, trade and consumer protection under s. 15.03. The board consists of the
5following members:
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1. A member representing the interests of towns, selected from a list of names
7submitted by the Wisconsin Towns Association.
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2. A member representing the interests of counties, selected from a list of
9names submitted by the Wisconsin Counties Association.
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3. A member representing environmental interests, selected from a list of
11names submitted by environmental organizations.
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4. A member representing livestock farming interests, selected from a list of
13names submitted by statewide agricultural organizations.
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5. Three other members.
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(b) The members under par. (a) shall be nominated by the secretary of
16agriculture, trade and consumer protection, and with the advice and consent of the
17senate appointed, for 5-year terms.
AB868-ASA1,5,4
293.90 Livestock facility siting and expansion. (1) This section is an
3enactment of statewide concern for the purpose of providing uniform regulation of
4livestock facilities.
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5(1m) Definitions. In this section:
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(a) "Animal unit" has the meaning given in s. NR 243.03 (3), Wis. Adm. Code.
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(b) "Application for approval" means an application for approval of a livestock
8facility siting or expansion.
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(c) "Board" means the livestock facility siting review board.
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(d) "Expansion" means an increase in the number of animals fed, confined,
11maintained, or stabled.
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(e) "Livestock facility" means a feedlot or facility, other than a pasture, where
13animals used in the production of food, fiber, or other animal products are or will be
14fed, confined, maintained, or stabled for a total of 45 days or more in any 12-month
15period. "Livestock facility" does not include an aquaculture facility.
AB868-ASA1,5,1616
(f) "Political subdivision" means a city, village, town, or county.
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17(2) Department duties. (a) For the purposes of this section, the department
18shall promulgate rules specifying standards for siting and expanding livestock
19facilities. In promulgating the rules, the department may incorporate by
20cross-reference provisions contained in rules promulgated under ss. 92.05 (3) (c) and
21(k), 92.14 (8), 92.16, and 281.16 (3) and ch. 283. The department may not promulgate
22rules under this paragraph that conflict with rules promulgated under s. 92.05 (3)
23(c) or (k), 92.14 (8), 92.16, or 281.16 (3) or ch. 283.
AB868-ASA1,6,3
1(b) In promulgating rules under par. (a), the department shall consider
2whether the proposed standards, other than those incorporated by cross-reference,
3are all of the following:
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1. Protective of public health or safety.
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1m. Practical and workable.
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2. Cost-effective.
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3. Objective.
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4. Based on available scientific information that has been subjected to peer
9review.
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5. Designed to promote the growth and viability of animal agriculture in this
11state.
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6. Designed to balance the economic viability of farm operations with
13protecting natural resources and other community interests.
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7. Usable by officials of political subdivisions.
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(c) The department shall review rules promulgated under par. (a) at least once
16every 4 years.
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(d) The secretary shall appoint a committee of experts to advise the department
18on the promulgation of the rules under par. (a) and on the review of rules under par.
19(c).
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(e) In addition to the rules under par. (a), the department shall promulgate
21rules that do all of the following:
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1. Specify the information and documentation that must be provided in an
23application for approval in order to demonstrate that a livestock facility siting or
24expansion complies with applicable state standards under sub. (2) (a).
AB868-ASA1,7,2
12. Specify the information and documentation that must be included in a record
2of decision making under sub. (4) (b).
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3(3) Political subdivision authority. (a) Notwithstanding ss. 33.455, 59.03 (2)
4(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
5(2), 92.11, and 92.15 (3) (a), a political subdivision may not disapprove or prohibit a
6livestock facility siting or expansion unless at least one of the following applies:
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1. The site is located in a zoning district that is not an agricultural zoning
8district.
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2. The site is located in an agricultural zoning district in which the proposed
10new or expanded livestock facility is prohibited, subject to pars. (b) and (c).
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3. The proposed new or expanded livestock facility violates an ordinance
12adopted under s. 59.692, 59.693, 60.627, 61.351, 61.354, 62.231, 62.234, or 87.30.
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4. The proposed new or expanded livestock facility violates a building,
14electrical, or plumbing code that is consistent with the state building, electrical, or
15plumbing code for that type of facility.
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5. The proposed new or expanded livestock facility will have 500 or more animal
17units and violates a state standard under sub. (2) (a).
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6. The proposed new or expanded livestock facility will have 500 or more animal
19units and violates a requirement that is more stringent than the state standards
20under sub. (2) (a) if the political subdivision does all of the following:
AB868-ASA1,7,2221
a. Adopts the requirement by ordinance before the applicant files the
22application for approval.
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b. Bases the requirement on reasonable and scientifically defensible findings
24of fact, adopted by the political subdivision, that clearly show that the requirement
25is necessary to protect public health or safety.
AB868-ASA1,8,5
18. The proposed new or expanded livestock facility will have fewer than 500
2animal units but will exceed a size threshold for requiring a special exception or
3conditional use permit that was incorporated into the political subdivision's
4ordinances before July 19, 2003, and the proposed new or expanded livestock facility
5violates a state standard under sub. (2) (a).
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9. The proposed new or expanded livestock facility will have fewer than 500
7animal units but will exceed a size threshold for requiring a special exception or
8conditional use permit that was incorporated into the political subdivision's
9ordinances before July 19, 2003, and the proposed new or expanded livestock facility
10violates a requirement that is more stringent than the state standards under sub.
11(2) (a) if the political subdivision does all of the following:
AB868-ASA1,8,1312
a. Adopts the requirement by ordinance before the applicant files the
13application for approval.
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b. Bases the requirement on reasonable and scientifically defensible findings
15of fact, adopted by the political subdivision, that clearly show that the requirement
16is necessary to protect public health or safety.
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(ae) A political subdivision that requires a special exception or conditional use
18permit for the siting or expansion of any of the following livestock facilities shall
19require compliance with the applicable state standards under sub. (2) (a) as a
20condition of issuing the special exception or conditional use permit:
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1. A new or expanded livestock facility that will have 500 or more animal units.
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2. A new or expanded livestock facility that will have fewer than 500 animal
23units but that will exceed a size threshold for requiring a special exception or
24conditional use permit that was incorporated into the political subdivision's
25ordinances before July 19, 2003.
AB868-ASA1,9,5
1(am) Notwithstanding par. (ae), a political subdivision may apply to a new or
2expanded livestock facility described in par. (ae) 1. or 2., as a condition of issuing a
3special exception or conditional use permit, a setback requirement that is less
4stringent than a setback requirement under sub. (2) (a) if the setback requirement
5is incorporated in the political subdivision's ordinances as a numerical standard.
AB868-ASA1,9,106
(ar) Notwithstanding par. (ae) a political subdivision may apply to a new or
7expanded livestock facility described in par. (ae) 1. or 2., as a condition of issuing a
8special exception or conditional use permit, a requirement that is more stringent
9than the state standards under sub. (2) (a) if the political subdivision does all of the
10following:
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1. Adopts the requirement by ordinance before the applicant files the
12application for approval.
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2. Bases the requirement on reasonable and scientifically defensible findings
14of fact, adopted by the political subdivision, that clearly show that the requirement
15is necessary to protect public health or safety.
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(b) Notwithstanding ss. 59.69, 60.61, 60.62, 61.35, and 62.23, a political
17subdivision may not prohibit a type of livestock facility in an agricultural zoning
18district based on number of animal units if livestock facilities of that type with fewer
19animal units are allowed in that zoning district, unless the political subdivision also
20has an agricultural zoning district in which livestock facilities of that type are
21permitted or conditional uses without respect to number of animal units.
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(c) Notwithstanding ss. 59.69, 60.61, 60.62, 61.35, and 62.23, a political
23subdivision may not enact or enforce a zoning ordinance with a category of
24agricultural district in which livestock facilities are prohibited unless the political
25subdivision bases that prohibition on reasonable and scientifically defensible
1findings of fact, adopted by the political subdivision, that clearly show that the
2prohibition is necessary to protect public health or safety.
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(d) Notwithstanding ss. 92.15 (4) and 281.16 (3) (e), a political subdivision that
4requires compliance with state standards under sub. (2) (a) as a condition of issuing
5a special exception or conditional use permit for an expanded livestock facility is not
6required to determine that cost-sharing is available to the operator of the livestock
7facility for facilities or practices needed to comply with those standards if the
8livestock facility will have 500 or more animal units.
AB868-ASA1,10,189
(e) Notwithstanding ss. 59.69, 60.61, 60.62, 61.35, and 62.23, a political
10subdivision may not enact a requirement that a person obtain a special exception or
11conditional use permit for the expansion of a livestock facility that exists when the
12requirement takes effect, except that a political subdivision may enact a requirement
13that a person obtain a special exception or conditional use permit for the expansion
14of a livestock facility that exists when the requirement takes effect if the requirement
15applies only when the number of animal units that the livestock facility will have
16after expansion will exceed by more than 20 percent the largest number of animal
17units that were at the livestock facility for at least 90 days in the 12-month period
18before the requirement takes effect.
AB868-ASA1,10,2219
(f) For the purposes of this subsection, the number of animal units that a
20livestock facility will have is the largest number of animal units that will be fed,
21confined, maintained, or stabled at the livestock facility on at least 90 days in any
2212-month period.
AB868-ASA1,11,3
23(4) Political subdivision procedure. (a) No later than 45 days after a political
24subdivision receives an application for approval, the political subdivision shall notify
25the applicant whether the application for approval is complete and, if it is not
1complete, what information is needed to complete the application for approval. As
2soon as the applicant has provided all of the required information, the political
3subdivision shall notify the applicant that the application for approval is complete.
AB868-ASA1,11,74
(b) A political subdivision shall make a record of its decision making on an
5application for approval, including a recording of any public hearing, copies of
6documents submitted at any public hearing, and copies of any other documents
7provided to the political subdivision in connection with the application for approval.