MADISON, Wis. — The state Supreme Court removed a regulatory hurdle Tuesday for a large-scale dairy farm in central Wisconsin, ruling that the farmers' right to use thousands of acres for crops was locked in when they filed their 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 due to 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, defined as farms with 1,000 animals or more, since 2002. Such farms generate tremendous amounts of manure, creating tensions with local residents and conservationists.
The Wysocki Family of Companies has has been looking to create a 6,400-acre farm called Golden Sands 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. Paul Kent, one of the town's attorneys, said residents are concerned manure from the farm will seep through the region's sandy soil and contaminate their wells.
The dairy sued the town. A state appeals court ruled last year that filing the building permit application didn't lock 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 filing a building permit application locks in the right to use property identified in the application under zoning in place at the time of 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 consistent with zoning at the time of filing.
Gableman said the rule creates 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 court's two liberal-leaning justices, 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 to see if the land is properly identified for each use, 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, another attorney for the town, said he's disappointed with the ruling but the decision is a narrow one based on Golden Sands' unique situation. He added that the ruling doesn't mean the diary will become operational. The project still needs Department of Natural Resources permits, including permission for 33 high-capacity wells and a pollution discharge permit, according to the DNR's website.
The Wysocki Family of Companies issued a statement Tuesday saying it was pleased with the decision and would continue to work with the town and stakeholders to "find compromise and solutions."