Via Milwaukee Journal Sentinel:
MADISON – The Wisconsin Supreme Court ruled Tuesday that the owners of a proposed large-scale dairy near Wisconsin Rapids can farm 6,388 acres of related land despite a town zoning ordinance.
The court, in a 5-2 decision, reversed an appeals court’s 2017 ruling that building permits for the proposed 5,300-cow dairy did not allow the Wysocki Family of Companies to farm the adjacent land.
The Wysocki organization waited six years as the case passed through the lower courts and respected the judicial process, said Jim Wysocki, chief financial officer.
The company is pleased with the court’s decision, he said, but still intends to work with the town of Saratoga and its residents to resolve concerns.
An opposition group, Protect Wood County and its Neighbors, is disappointed by Tuesday’s decision but not defeated, said Rhonda Carrell, one of the organizers. The community is concerned about the dairy’s effect on its pristine water, good quality air and high property values, Carrell said. The Supreme Court decision doesn’t take into account what local residents want for their community, she said.
The decision gives the company the right to the agricultural use of the farm and the ability to construct and use the dairy, Wysocki said. The dairy will begin working on some farmland aspects of the project this year by clearing more land and putting some of the land already cleared into production, he said.
The town of Saratoga and its attorneys are disappointed by the Supreme Court’s decision, attorney Paul Kent said in a written statement. However, the town is not deterred and the case does not invalidate the town’s zoning ordinance, he said.
The proposed dairy is now a non-conforming use under the town’s ordinance, said Remzy Bitar, litigation counsel for the town, in the statement. There can be no expansion of the vested rights and no alternate use, Bitar said.
Jim Wysocki originally proposed a 3,500-cow farm in Saratoga in June 2012. He contacted town, county and state officials to notify them of the company’s plan for the dairy and produce operation, and he spoke with the Daily Tribune in Wisconsin Rapids the same day to get the word out to the public.
The original plans called for 6,388 acres of irrigated land. The company plans to use high-capacity wells to get water for irrigation and the dairy.
Saratoga residents almost immediately organized to fight the proposed large-scale dairy, known as a concentrated animal feeding operation, or CAFO. The town refused to issue the dairy building permits and placed a moratorium on construction in the town until it could put a zoning plan in place. In November 2012, the Town Board ratified a zoning plan that does not allow agricultural use of any of the Wysocki land.
The Wysocki Family of Companies sued the town, and a judge ordered Saratoga officials to issue the company the building permits it needed.
The town then notified the company that the building permits did not give Wysocki authority to farm the land, and again the company sued. A circuit court judge ruled the company could farm the land, but the appeals court reversed the decision.
In the Supreme Court decision issued Tuesday, court members said the original building applications contained a thorough description of the land. It also said the company gave the town copies of permit applications it filed with the county and state as a courtesy.
Justice Shirley Abrahamson and Justice Ann Walsh Bradley both disagreed with the decision. In the written dissent, Abrahamson said the Supreme Court’s expansion of the building permit rule in the state creates uncertainty in a previously predictable process.
Kent said he agrees with Abrahamson’s view that the majority decision is an “ill-advised expansion of the building permit rule.” The rule allows for someone who applies for a building permit to use the building for its intended use if the use was legal at the time the application was made.
The Wysocki company still has a heavy burden to get its proposed dairy up and running, Carrell said. The company has to finishh the Wisconsin Department of Natural Resources permitting process. It also must meet the requirements of the livestock ordinance that the town had approved by the DNR and put in place in 2016, she said.
The DNR permitting process was put on hold until the court process was finished, and will now resume, Wysocki said.
Carrell said Protect Wood County and its Neighbors would like to work with the dairy to find a solution that preserves their ground and surface water, property values and quality of life.