Public Perception Not a Rational Basis for Revoking Conditional Use Permit

April 4, 2014

In the recent appeal decision Oneida Seven Generations Corporation and Green Bay Renewable Energy, LLC v. City of Green Bay, Appeal No. 2013AP591, the Court of Appeals for District III considered whether the Common Council for the City of Green Bay, Wisconsin (the “City”) acted in an arbitrary and capricious manner when, despite an approval recommendation from its own Plan Commission and following public outcry, it chose to revoke a previously granted Conditional Use Permit (“CUP”) allowing Oneida Seven Generations Corporation and Green Bay Renewable Energy, LLC (“Seven Generations”) to operate a solid waste disposal facility.

The Plan Commission initially considered and voted to recommend approval of the CUP on February 21, 2011, which, following a detailed presentation by Seven Generations, was approved by the Common Council on March 1, 2011. Following approval, Seven Generations proceeded with obtaining authorization from state and federal environmental authorities, during which time plan opponents began expressing concern about potential environmental impacts of the facility. The Department of Energy and the Department of Natural Resources nevertheless found the proposed project to be compliant with current air standards and proceeded to issue the necessary permits.

Thereafter, allegations by opponents that Seven Generations had misrepresented facts during the initial CUP approval prompted the Common Council to direct the Plan Commission to review whether misrepresentations had occurred. Specifically, the claimed misrepresentations were in regard to whether the facility would have smokestacks and produce emissions. At the rehearing held on October 3, 2012, the Plan Commission determined by unanimous vote the information provided had not been misrepresented, and it therefore recommended the CUP stand. At the final hearing held October 16, 2012, during which members of the public were permitted to speak, the Common Council, without explanation, voted to revoke the CUP. The Common Council decision was thereafter upheld by the reviewing Circuit Court.

On appeal, the Court of Appeals determined the operative question was whether Green Bay had exercised its authority in an arbitrary manner and without substantial supporting evidence. In analyzing this question, the Court of Appeals described the City’s action as “fickle” and “inconstant,” noting the permit revocation had occurred “despite the Plan Commission’s specific finding that there were no misrepresentations and without ever identifying the allegedly false statements.” In finding that the City had chosen to ignore its Plan Commission at its own peril, the Court of Appeals expressed its dismay at the “City’s failure to mention the findings of its own Plan Commission.” Moreover, the Court of Appeals found the “absence of any identifiable false statements” to be “troubling,” noting, among other things, “[f]raud requires proof of an intentional misrepresentation, which is established, in part, by an untrue representation of fact.” In concluding remarks, the Court of Appeals found the “scant statements the City cites as support for its revocation action do not constitute substantial evidence of misrepresentation.”

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