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Court applies Building Permit Rule to large dairy farm (UPDATE)

Cows at pasture at the Romari Farm in rural East Troy, west of Waterford. Dairy farms like this one have been struggling amid a supply glut and declining prices for their products. The Wisconsin Supreme Court meanwhile ruled on Tuesday that the town of Saratoga's decision earlier this decade to change zoning for a particular piece of land can't prevent a large dairy farm from being built there because project officials had applied for a building permit before that change was made. (Christina Lieffring/The Journal Times via AP)

Cows out to pasture at the Romari Farm in rural East Troy, west of Waterford. Dairy farms like this one have been struggling amid a supply glut and declining prices for their products. The Wisconsin Supreme Court meanwhile ruled on Tuesday that the town of Saratoga’s decision earlier this decade to change zoning for a particular piece of land cannot prevent a large dairy farm from being built there, noting that project officials had applied for a building permit before the zoning change was made. (Christina Lieffring/The Journal Times via AP)

By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — The state Supreme Court removed a regulatory hurdle Tuesday for a large dairy farm in central Wisconsin, ruling that the right to use thousands of acres for crops was locked in when project officials applied for a building permit.

Wisconsin is the nation’s second-leading milk producer. Dairy operations in the state account for nearly 80,000 jobs. But the industry has been struggling with declining milk and other commodity prices the past three years, largely because of an abundance of milk on the market. Wisconsin lost 500 dairy farms in 2017.

The industry has been shifting toward larger, corporate farms over the last 15 years. The state has added 229 large-scale farms, which are defined as farms with 1,000 animals or more, since 2002. Such farms generate tremendous amounts of manure and are the cause of tension with local residents and conservationists.

Golden Sands Dairy has been looking to open a 6,400-acre farm in Wood County since 2012. The land was zoned unrestricted when the dairy asked the Town of Saratoga for a building permit that year. The permit application identified 100 acres as the building site and 6,388 acres within the town for agricultural use.

The town re-zoned the land for preservation four months after the application was filed, barring agricultural use.

The dairy sued the town. A state appeals court ruled last year that the mere filing of a building-permit application hadn’t locked in the right to use 6,388 acres for agriculture.

The Supreme Court reversed that ruling Tuesday. The court ruled in a 5-2 decision that applying for a building permit locks in the right to use property identified in the application under the zoning that was in place at the time of the filing.

Writing for the majority, Justice Michael Gableman noted that Wisconsin is one of the few U.S. jurisdictions that adhere to a legal doctrine called the Building Permit Rule. Under that rule, a building-permit applicant locks in the right to use property identified in the application in ways permitted by whatever zoning was in place at the time of filing.

Gableman said the rule provides predictability for land owners, buyers, developers, municipalities and the courts.

“For any business that requires land in addition to structures for its operations, a building permit is nearly worthless if the rights vested by obtaining (the permit) do not extend to the land necessary to put the structures to their proper use,” Gableman wrote.

Shirley Abrahamson and Ann Walsh Bradley, the two liberal-leaning justices on the court, argued in a joint dissent that the ruling amounts to an “ill-advised expansion” of the Building Permit Rule. What was once an easy-to-apply, bright-line rule will now require a case-by-case analysis of each applicant’s specific land-use plans, Abrahamson wrote.

The fight over Golden Sands’ zoning spurred Republican lawmakers to pass statutes in 2013 that essentially freeze zoning regulations when a person proposing a project first applies for local approval. Gableman noted those statues don’t apply to Golden Sands because they were adopted after the dispute began.

Remzy Bitar, a lawyer representing the town of Saratoga, said he’s disappointed with the ruling but said the decision is a narrow one coming in response to Golden Sands’ particular situation. He added that the ruling doesn’t mean the dairy will become operational.

The project still needs approvals from the Department of Natural Resources, including permission for 33 high-capacity wells and a pollution-discharge permit, according to the DNR’s website.

Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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