In Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, the Wisconsin Supreme Court found that the City’s decision to rescind the conditional use permit (“CUP”) initially granted to Oneida Seven Generations (“Oneida Seven”) was improper. Oneida Seven submitted an application to the City Plan Commission for a CUP relating to a renewable energy facility that would convert solid waste into energy through a pyrolytic gasification system. This facility would be the first of its kind in the State of Wisconsin. The Plan Commission discussed the project at an open meeting attended by the CEO of Oneida Seven, its engineer and project manager. There were numerous questions posed by the Commission regarding the gasification process, emissions and toxins. Many of the questions focused on whether any toxins would be present in the ash byproduct. Oneida Seven confirmed that the toxins would be removed from the ash and that any emissions would meet EPA and DNR standards. After the meeting, the Commission voted unanimously to recommend approval of the project but also recommended conditions on the CUP, including a requirement that the facility comply with all municipal, federal and state regulations regarding air and water quality. The City Common Council considered the project, viewing the same presentation materials as the Commission had and posing questions to Oneida Seven. During this meeting, Oneida Seven CEO indicated that there would be “no smokestacks” at the project and confirmed that there would be exhaust output, but it would be clean. After evaluating the project, the Council voted to approve the CUP with the conditions recommended by the Commission.

Oneida Seven pursued the necessary permits for the project, including a construction permit from the DNR, however, the DNR required the project to have multiple “stacks” and emissions testing. After citizen complaints, the Council instructed the Commission to determine whether Oneida Seven had obtained the CUP by misrepresentation. The Commission held a hearing and allowed various individuals, including the CEO of Oneida Seven, to testify. Specifically, the CEO noted that his statements regarding emissions were in response to questions about specific portions of the project, and he never claimed the entire project would have no emissions. In addition, he differentiated between “stacks” and his comment that there would be no “smokestacks” at the project. The Commission unanimously agreed that it had adequate information to reach its decision on the CUP and that it had not been misled, nor had Oneida Seven made misrepresentations. The Common Council reviewed this decision, but came to a different determination. A motion was made to rescind the CUP on the grounds that Oneida Seven had knowingly made misrepresentations regarding emissions, chemicals and hazardous materials at the project as well as other issues. After the motion to rescind passed, Oneida Seven requested review, but the City denied the request. Oneida Seven then sought certiorari review on the grounds the City’s decision to rescind was not supported by substantial evidence. The circuit court rejected this argument.

The court of appeals reversed finding the Common Council did not identify the claimed misrepresentations by Oneida Seven, and thus, failed to adequately state the basis for its decision to revoke the CUP. The court of appeals went on to find that none of the statements by Oneida Seven constituted a misrepresentation. The Wisconsin Supreme Court affirmed. After noting that the City’s decision is presumed valid, the court determined the Common Council adequately identified the basis for rescinding the CUP. However, the court then evaluated each of the claimed misrepresentations in detail, ultimately finding no evidence in the record to support a finding that the CEO’s statements regarding emissions and hazardous materials were misrepresentations. Similarly, the court determined the statement there would be no “smokestacks,” even though the project would have numerous vents, was not an intentional misrepresentation. The court further noted that if the City had wanted to preclude vents, it could have included that as a condition in the CUP. Finally, although the testimony indicated the public could not find other facilities with precisely the same technology as the proposed project, the court determined the statement that the project was not a new or experimental technology was not a misrepresentation. On these grounds, the Supreme Court held that Oneida Seven rebutted the presumption in favor of the City’s decision. In her dissent, Justice Roggensack clearly outlined her position that the majority did not afford the Common Council’s decision the presumption of validity required by the law. She posited instead, that the majority improperly focused on the decision of the Plan Commission, rather than the Common Council, and that there was, in fact, sufficient evidence in the record to support the Common Council’s decision to rescind the permit.

This decision provides an interesting evaluation of both the CUP process as well as certiorari review. Unfortunately, due to the fact-specific analysis, this decision may not provide broad guidance for the future.

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