Council’s rescission of conditional use permit based on misrepresentation was not based on substantial evidence

by Gary Taylor

Oneida Seven Generations Corp. & Green Bay Renewable Energy v. City of Green Bay
Wisconsin Supreme Court, May 29, 2015

Oneida Seven Generations Corporation sought a conditional use permit (CUP) to install a renewable energy facility in the City of Green Bay.  The facility would take municipal solid waste and turn it into energy via a pyrolytic gasification system. The application was supported by a 149-page report on the facility. The report included proposed blueprints for the facility and artist’s renderings of its exterior. It also contained photographs of a pyrolytic gasification unit with various parts labeled, including its “exhaust stack.” In addition to these illustrations, the report described the various permits that would be required from the Wisconsin Department of Natural Resources (DNR) and the requisite reporting to and oversight by the DNR of the facility’s emissions. The report also contained a 50-page section entitled “Emissions,” which consisted of two papers analyzing the impact on air quality of similar facilities. The papers identify possible emissions from conversion technologies, explain that they are significantly lower in amount than emissions from other types of facilities, and observe that the emissions from facilities using conversion technologies fall within local, state, federal, and international emission limits. The papers were followed by an appendix listing over 100 facilities throughout the world that are disposing and converting biomass (principally municipal solid waste) in the process of producing energy and/or fuels.

During the question and answer session at the February 2011 Planning Commission meeting, commissioners asked numerous questions about the gasification process, the technology and its use in other communities, emissions, building appearance (including exhaust stacks), and several other topics. At the conclusion, the Plan Commission voted unanimously to recommend approval of the conditional use permit. Their recommendation suggested that a number of conditions be placed on the permit. These included the requirement that the facility comply with all municipal regulations and the requirement that the facility comply with federal and state regulations governing air and water quality.

The Green Bay Common Council took up Oneida Seven’s request on March 1, 2011.   Council members asked many more questions regarding emissions and waste material. At the conclusion, the Council voted 10-1 to approve the conditional use permit with the conditions recommended by the Plan Commission.

Although the City initially voted to grant the permit, it subsequently voted to rescind the CUP on the basis that it was obtained through misrepresentation. This came after Oneida Seven applied for the various city, state, and federal permits it would need for the project and submitted plans to accompany those applications.  Members of the public complained to the Green Bay City Council about many matters related to the proceeding, including that the stacks and emissions referenced in the building permit were not on the plan submitted for the CUP.  The  Council voted to direct the Plan Commission to hold a hearing to determine whether the conditional use permit had been obtained by misrepresentation. After taking more testimony and receiving more documents from Oneida Seven, the Commissioners unanimously agreed that they had had adequate information to reach a decision on the CUP, that they had not been misled, and that Oneida Seven had not made misrepresentations. The Commission relayed these findings to the Council in a report. The Council considered the Commission’s findings at a meeting on October 16, 2012. A motion to approve the decision of the Commission did not pass, but a motion to rescind the conditional use permit passed by a vote of seven to five.  Oneida appealed, lost at trial court, but won at the Court of Appeals.  The City appealed to the Wisconsin Supreme Court.

The Supreme Court was asked to consider whether the City’s decision to rescind Oneida Seven’s conditional use permit was supported by substantial evidence. Substantial evidence is evidence “of such convincing power that reasonable persons could reach the same decision as the board.” In determining whether the substantial evidence test is met, a court should “take into account all the evidence in the record.”  After carefully dissecting the entire record of statements made by Oneida Seven representatives at the Commission and Council meetings, and examining them in the context of the questions being asked of them at the time, the Supreme Court could not find evidence in the record on which a reasonable person could rely to find that Oneida’s statements about emissions and hazardous materials were misrepresentations. Therefore the Supreme Court concluded that the City’s decision to rescind the conditional use permit was not based on substantial evidence.

Dissenting opinion

Justice Roggensack dissented, arguing that the majority opinion did not accord the Council’s decision the presumption of correctness and validity that the law requires, and that instead, the majority opinion substituted its view of the evidence for that of the Council, contrary to law.  Material misrepresentations were made to the Council in regard to emissions during operation of the gasification facility and such a facility was not experimental because solid municipal waste was being used as the feedstock in other gasification facilities. A reasonable view of the presentations made March 1, 2011, when Oneida Seven obtained the CUP, supported the Council’s finding that it was misled.

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