Oneida Seven Generations Corporation v. City of Green Bay ( 2015 )

2015 WI 50
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP591
COMPLETE TITLE: Oneida Seven Generations Corporation and Green
Bay
Renewable Energy, LLC,
Plaintiffs-Appellants,
v.
City of Green Bay,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 353 Wis. 2d 553, 846 N.W.2d 33
(Ct. App. 2014 – Unpublished)
OPINION FILED: May 29, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 8, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: Marc A. Hammer
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, C.J. dissents. (Opinion Filed)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, the cause was
argued by Ted A. Warpinski, with whom on the briefs was S. Todd
Farris, Christopher M. Meuler, Joseph M. Peltz, and Friebert,
Finerty & St. John, S.C., Milwaukee.
For the plaintiffs-appellants, the cause was argued by
Michael B. Apfeld, with whom on the brief was Eric J. Wilson,
Dustin B. Brown, and Godfrey & Kahn, S.C., Madison.
An amicus curiae brief was filed by Thomas D. Larson,
Madison, on behalf of the Wisconsin Realtors Association.
2
2015 WI 50
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP591
(L.C. No. 2012CV002263)
STATE OF WISCONSIN : IN SUPREME COURT
Oneida Seven Generations Corporation and Green
Bay Renewable Energy, LLC,
Plaintiffs-Appellants, FILED
v.
MAY 29, 2015
City of Green Bay,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. Oneida Seven Generations
Corporation sought a conditional use permit to install a
renewable energy facility in the City of Green Bay (the City).1
Although the City initially voted to grant the permit, it
subsequently voted to rescind the conditional use permit on the
basis that it was obtained through misrepresentation. The court
1
Green Bay Renewable Energy, LLC, also a party to this
action, is a wholly owned subsidiary of Oneida Seven Generations
Corporation. We refer to them jointly as ("Oneida Seven").
No. 2013AP591
of appeals determined that the City's decision that the permit
was obtained through misrepresentation was not supported by
substantial evidence and reversed.2
¶2 The City now seeks review of the unpublished decision
of the court of appeals that reversed the order entered by the
circuit court which had affirmed the City's decision to rescind.
The City contends that the court of appeals incorrectly applied
the substantial evidence standard by substituting its judgment
for that of the City's Common Council.
¶3 Like the court of appeals we conclude that the City's
decision to rescind the conditional use permit was not based on
substantial evidence. In conducting a certiorari review to
determine whether there was substantial evidence to support a
decision, we consider the evidence in context. Considering the
context, we determine that based on the evidence presented, the
City could not reasonably conclude that the statements by Oneida
Seven's representative to the City government regarding the
proposed facility's emissions and hazardous materials, its
stacks, and its technology were misrepresentations.
Accordingly, we affirm the court of appeals.
I
¶4 A review of whether there is substantial evidence to
support a determination that the permit was obtained through
2
Oneida Seven Generations Corp. v. City of Green Bay, No.
2013AP591, unpublished slip op. (Wis. Ct. App. Mar. 25, 2014)
(reversing order of the Circuit Court for Brown County, Marc A.
Hammer, Judge).
2
No. 2013AP591
misrepresentation generally requires a fact intensive analysis.
This case is no exception. We begin by examining the nature of
the proposed facility and the record established to support the
initial grant of the conditional use permit.
¶5 Oneida Seven proposed a renewable energy facility that
would take municipal solid waste and turn it into energy via a
pyrolytic gasification system. It described the process as
follows: municipal waste is delivered to the facility where it
is sorted and inappropriate materials, such as tires and
plastics, are removed. Then the waste is transferred into a
pyrolytic converter, where it is heated and processed into gas.
The remaining residue (such as ash) exits the unit. The gas is
then cleaned in a venturi separator, before it is stored. Some
of the gas (referred to as synthetic gas or "syngas") is used to
fuel the system, the rest can be used to generate steam or
electricity.
¶6 After meeting with Green Bay's Economic Development
Department to discuss the permitting process and possible
locations for its proposed facility, Oneida Seven submitted an
application to the Plan Commission requesting a conditional use
permit allowing it to place the facility on Hurlbut Street in
Green Bay. The application was supported by a 149-page report
on the facility.
¶7 The report includes proposed blueprints for the
facility and artist's renderings of its exterior. It also
contains photographs of a pyrolytic gasification unit with
various parts labeled, including its "exhaust stack." In
3
No. 2013AP591
addition to these illustrations, the report describes 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.
¶8 The report also contains a 50-page section entitled
"Emissions." This section consists of two papers analyzing the
impact of similar facilities on air quality. 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 are 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.
¶9 After reviewing Oneida Seven's submissions, the City's
planning staff drafted a report to the Green Bay Plan
Commission, recommending that it approve the request for the
conditional use permit. The staff observed that the proposed
use is an appropriate land use for the site, that the site is in
a heavily industrial area separated from any residential uses by
Interstate 43, and that there had been no inquiries or
objections to the request as of the date of the report.
¶10 The Plan Commission considered the project at an open
meeting on February 21, 2011. The CEO of Oneida Seven, Kevin
4
No. 2013AP591
Cornelius, its engineer, and its project manager presented
PowerPoint slides accompanied by an audio recording to the
Commission which explained how the pyrolysis process works.
After the recording concluded, Cornelius, the engineer, and the
project manager took questions from the Commission.
¶11 During the question and answer session, a commissioner
asked about what was in the gas after the gasification process
was complete. Mr. Cornelius responded that the gas was cleaned
and toxins would be removed from it. The same commissioner then
acknowledged the emissions research Oneida Seven had provided
and questioned the procedures employed by a site in California.
The engineer responded that California's site chose a system
based on similar technology. Like that system, the new system
Oneida Seven would be using meets all emission requirements.
¶12 Another commissioner asked if there were other
communities using this technology. The engineer and Cornelius
replied that this would be the first community in Wisconsin to
use this technology, but other industries use different versions
of gasification systems.
¶13 Commissioner Wiezbiskie asked about the system's
output. Mr. Cornelius or the engineer replied that the process
would create ash that would be tested and reused if test results
were appropriate.3 Then, after referring to the comprehensive
3
It is unclear from the recording whether it is Cornelius
or the engineer who is speaking at this point in the meeting.
The meeting minutes attribute these statements to Cornelius, but
the parties indicated that the meeting minutes were inaccurate
at times in identifying the speaker.
5
No. 2013AP591
emissions report Oneida Seven had submitted, Commissioner
Wiezbiskie asked about the ash and the syngas that the process
would produce. Mr. Cornelius or the engineer responded that the
emissions would be taken out in the gasification process and the
syngas would be cleaned.
¶14 Again referencing the emissions report, Commissioner
Wiezbiskie sought further clarification about what toxins would
be in the ash. Either Cornelius or the engineer responded that
the toxins would be removed from the ash and that they would be
the only by-product from the process. He further explained that
the emissions would meet EPA and DNR standards.
¶15 After the question and answer session, 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.
¶16 The Common Council took up Oneida Seven's request for
the conditional use permit on March 1, 2011. Shortly after the
project was brought to the floor, one of the aldermen clarified
that if it got approved, the Department of Energy, the DNR, and
the EPA would also be reviewing the project: "So there's a bunch
of scientists looking at this, to check for safety. What we're
doing here tonight is to say is this the right part of Green Bay
for something like this to go into. And that's all."
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No. 2013AP591
¶17 The Common Council viewed the same PowerPoint
presentation that Oneida Seven had played for the Plan
Commission. During the presentation, Cornelius explained the
gasification process, noting that there would be no emissions
coming out of one "portion of the system," but there would be
"emissions from the burner," which meet emission standards. He
observed that there would be no smokestacks, adding, "for those
of us in Green Bay we know that that means." Mr. Cornelius also
stated that "gasification technology is not new." He explained
how in developing this project, they had gone around the country
looking at different systems, and ultimately decided on a system
they had seen in California.
¶18 Then, Cornelius and the project manager answered
questions from the Council. Members of the Council asked about
tax exemptions, whether the land could be placed into a trust,
and where Oneida Seven would be obtaining the waste material that
the plant would process. One alderman recognized that although
there would not be stacks, there would be an exhaust output, and
asked if the exhaust would be clean. Mr. Cornelius responded
"yes." The Council also heard testimony from an independent
consulting engineer in support of the project. He gave detailed
information about the various emissions gasification systems
produce. After a lengthy discussion of the Tri-County Agreement
and tipping fees, the Council voted ten to one to approve the
7
No. 2013AP591
conditional use permit with the conditions recommended by the
Plan Commission.4
¶19 In accordance with the conditions of the permit, Oneida
Seven applied for the various city, state, and federal permits it
would need for the project. The City's Division of Safety and
Buildings found the plans to be in conformance with applicable
laws and regulations and issued a building permit for the
project. Likewise, the DNR approved Oneida Seven's application
for an air permit, determining that the project met statutory
requirements.5 The United States Department of Energy (DOE) also
reviewed the project and determined that it would not
significantly affect the quality of the human environment.
¶20 Despite concerns voiced by some members of the public,
the DNR granted a final construction permit for the project. The
permit indicated that the project would be required to have
multiple "stacks."6 The permit further required Oneida Seven to
4
The members of the Council voting in favor were: Ald.
Deneys, Ald. Wiezbiskie, Ald. DeWane, Ald. Theisen, Ald. Kocha,
Ald. Haefa, Ald. Dorff, Ald Wery, Ald. Zima, and Ald. Danzinger.
Alderman Nicholson voted against granting the permit.
5
The record indicates that Oneida Seven paid approximately
$17,350 in permit fees to the DNR and $11,405 in permit fees to
the City.
6
Initially, the permit indicated the stacks would be up to
60 feet tall. However, after the City informed Oneida Seven
that under municipal regulations the stacks could not exceed 35
feet in height, Oneida Seven submitted a request to the DNR to
modify the permit so that the highest stack would be 35 feet
tall, reaching only 3 feet over the roofline of the facility.
That request was granted.
8
No. 2013AP591
test emissions for a number of specified pollutants and notify
the DNR immediately if results exceeded certain levels.
¶21 Additional members of the public joined those who
previously had voiced their concerns and complained to the Common
Council. Their complaints primarily focused on the stacks and
emissions referenced in the building permit. One individual
observed that the stacks were not on the City plan. Another
individual read a letter from the Midwest Environmental Advocates
which asserted that the conditional use permit should be
rescinded due to misrepresentations.
¶22 Thereafter, the Common Council voted to direct the Plan
Commission to hold a hearing to determine whether the conditional
use permit had been obtained by misrepresentation. The published
notice for the hearing stated its purpose more specifically: "to
determine if the information submitted and presented to the Plan
Commission was adequate in order to make an informed decision
whether or not to advance the Seven Generation conditional use
permit, the CUP that was recommended."
¶23 The Plan Commission held the hearing on October 3,
2012. It accepted numerous submissions from the public and
permitted representatives from Oneida Seven, Council members, and
members of the public to testify. Oneida Seven submitted various
documents, including the copies of the DNR Environmental
Analysis, the DNR's response to public comments, the original and
revised DNR air permits, the DOE Finding of No Significant
Impact, and the DOE Final Environmental Assessment.
9
No. 2013AP591
¶24 Mr. Cornelius also spoke on Oneida Seven's behalf.
Referencing the substantial documentation Oneida Seven had
provided with its initial application, he testified that there
had been enough information before the Commission for it to make
a decision on the conditional use permit. He denied that he
said the entire facility would have no emissions and emphasized
that his earlier comments were regarding certain portions of the
gasification process. He asserted that the City was well aware
that the facility would have emissions.
¶25 With respect to the comments about stacks in his
earlier presentation, Cornelius explained that "stacks" are
different from "smokestacks." He stated that he had used the
term smokestack as a layman's term for those stacks associated
with coal-burning plants that are several hundred feet high and
twenty to thirty feet wide. In contrast, the "stacks" at the
proposed facility are exhaust pipes that will be approximately 26
inches wide and 35 feet tall (a mere 3 feet over the roofline of
the building). The DNR's definition of stack is very broad,
including even an air vent. According to Cornelius, they filled
out the DNR application indicating that the facility would have
stacks, not smokestacks, as the exhaust pipes fit the DNR's
definition of the term.
¶26 Other individuals spoke on behalf of the project as
well. An environmentalist testified that the project was a good
transition strategy to get to zero waste. Alderman Kocha
testified that she and other Council members had met with the
neighborhood association and reviewed the tape of the session
10
No. 2013AP591
where they had voted to approve the permit. After reviewing the
tape, they did not think Oneida Seven had lied. Similarly, the
independent consulting engineer testified that the City had not
been misled. He had made it clear at the Common Council meeting
on March 1, 2011, that the facility would have emissions.
¶27 There were also individuals who spoke against the
project at the hearing. They complained that they and the
commissioners and Council members were told that there would be
"zero pollution, zero emissions, zero smoke stacks, zero
hazardous materials" and that those were misrepresentations.
Some indicated they thought the project would be bad for the
public health, contending that when you burn tires and medical
waste it is just common sense that "you don't just put all that
in there and then nothing comes out." Others indicated the
project was too rushed. Still others were just generally against
it, noting the odor it would produce, complaining about the lack
of neighborhood notification, and asking other questions about
the project, such as why the Oneida tribe was not building the
facility on its own land.
¶28 After the testimony concluded, the members of the Plan
Commission debated whether they had received adequate information
to make an informed decision to recommend approval of the
conditional use permit. Several of the comments in this debate
were directed at concerns the public had raised.
¶29 In response to the comments about the stacks not
appearing in the preliminary drawings of the facility, the
commissioners observed that at the time an applicant is seeking a
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No. 2013AP591
conditional use permit, not all of the details have been decided;
applicants do not want to spend a lot of money on something
before it has been approved. Accordingly, the Plan Commission
does not expect to see finalized architectural drawings at that
point in time. As for the citizens' concerns over what the
proposed facility would be using as feedstock, one commissioner
pointed out that hazardous waste, infectious waste, tires,
plastic, and electronics would not be used in the gasification
process.7
¶30 The commissioners also recognized that they were not
experts and neither were most of the individuals who had
testified that night. They stressed that they rely on the
experts at the DNR and the DOE, and that was why they put a
condition in the conditional use permit requiring Oneida Seven
to get approvals from those bodies. The commissioners further
stated that they had been aware that there would be emissions
from the facility and they had been aware that the facility
would have vents.
¶31 The commissioners unanimously agreed that they had had
adequate information to reach a decision on the conditional use
permit, that they had not been misled, and that Oneida Seven had
not made misrepresentations. The Commission relayed these
findings to the Common Council in a report.
7
"Feedstock" refers to the waste that will go into the
pyrolytic gasification system to be converted into energy.
12
No. 2013AP591
¶32 The Common Council considered the Plan Commission's
findings at a meeting on October 16, 2012. Alderman Wiezbiskie
moved for the Council to approve the decision of the Plan
Commission. The motion did not pass. Then, Alderman Sladek
moved to rescind the conditional use permit. He provided four
bases for his motion. First, he asserted Cornelius had made
false statements in response to questions about the project:
Number one, the chief executive officer of Seven
Generations Corporation, Kevin Cornelius, made
untruthful statements before the city governmental
bodies while seeking the conditional use permit for
the gasification project. These false statements were
made in response to questions or concerns related to
the public safety and health aspects of the project
and the project's impact on the city's environment.
Second, Alderman Sladek determined that Cornelius's untruthful
statements were clear and left no impression of doubt or
uncertainty:
Number two, the statements made by Kevin Cornelius
were plain spoken statements, they contained no
equivocation, they left no impression of doubt or
uncertainty, his words were intended to influence the
actions of the bodies he was addressing.
Third, Alderman Sladek maintained that Cornelius knew his
statements were false:
Number three, Kevin Cornelius knew his statements were
false, he was not a new, or uninformed member of the
Seven Generations Organization, he was the chief
executive officer, and had been involved throughout
the project's development, and was therefore
knowledgeable about the pilot work, the process and
the equipment, and the materials that would be used,
the nature of the byproducts and chemicals released.
He understood the role that he accepted as a
spokesperson for seven generations for that project
13
No. 2013AP591
and he had every opportunity to say 'I don't know' or
'I can't answer that' when the questions were put to
him.
Alderman Sladek's fourth basis for the motion was that he
believed that Cornelius's untruthful statements were on matters
of high importance:
Number four, the subject matter of the questions put
to Kevin Cornelius was of very high importance. On the
subject of emissions, the documents submitted by Seven
Generations in applying for the permit were references
to other plants using a variety of technologies,
equipment, and feedstock. Commissioners were
rightfully interested in this project, not what
happened at other projects. That's why they asked the
questions they did. And when they asked about
emission, and chemicals, and hazardous materials at
this project, Kevin Cornelius provided false
information.
The Mayor called for a vote on the motion to rescind the
conditional use permit "for the reasons [Sladek] stated." The
motion passed by a vote of seven to five.8
¶33 Oneida Seven filed for an administrative appeal under
Wis. Stat. §§ 68.08, 68.10 and 68.11, requesting review and a
8
There was a significant change in the makeup of the Common
Council between the time the Council initially approved the
conditional use permit and the time that the Council voted for
rescission. The Council members who voted to rescind the
conditional use permit were: Ald. Boyce, Ald. Burnette, Ald.
(Tim) Dewane, Ald. (Tom) DeWane, Ald. Nicholson, Ald. Sladek,
and Ald. Steuer. Five of these individuals were new members of
the Council. The members who voted against rescinding the
conditional use permit were: Ald. Danzinger, Ald. Kocha, Ald.
Moore, Ald. Warner, and Ald. Wiezbiskie. Two of these
individuals were new members. Only one who had originally voted
to grant the conditional use permit changed his vote to rescind
it.
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No. 2013AP591
hearing. The City denied the request, determining that the
hearings before the Plan Commission and the Common Council
substantially complied with Wis. Stat. § 68.11 and met
constitutional standards and protections.
¶34 Next, Oneida Seven sought certiorari review from the
circuit court. It asserted that the City's decision to rescind
its conditional use permit was arbitrary and not supported by
substantial evidence. The circuit court rejected Oneida Seven's
arguments.
¶35 On appeal, Oneida Seven again argued that the City's
decision to rescind its conditional use permit was arbitrary and
not supported by substantial evidence.9 In response, the City
contended that Oneida Seven had made multiple misrepresentations
that supported its decision to rescind the conditional use
permit, including: that the facility would have no emissions,
that its char could be reused, that the facility would not have
smokestacks, and that the process was not new technology.
¶36 Describing the City's actions as "[f]ickle and
inconstant," the court of appeals agreed with Oneida Seven.
9
Oneida Seven also argued that the City could not revoke
the conditional use permit because Oneida Seven had obtained a
vested right to it. The court of appeals did not address this
argument because it ruled in favor of Oneida Seven on other
grounds. Oneida Seven Generations Corp, No. 2013AP591, ¶18 n.4.
Oneida Seven made a similar argument regarding vested rights to
this court. The City responded that Oneida Seven could not have
gained vested rights in the permit because it was approved based
on misrepresentations. Like the court of appeals, we need not
address these arguments because the substantial evidence issue
is determinative.
15
No. 2013AP591
Oneida Seven Generations Corp. v. City of Green Bay, No.
2013AP591, unpublished slip op., ¶22 (Wis. Ct. App. Mar. 25,
2014). First, the court determined that the Common Council had
failed to give the basis for the City's decision to revoke the
permit in that it did not identify the alleged
misrepresentations Cornelius made. Id., ¶¶24-27. According to
the court of appeals, this failure alone makes the City's action
appear to be the product of "unconsidered, wilful or irrational
choice, and not the result of the 'sifting and winnowing
process.'" Id., ¶27 (quoting Robertson Transp. Co. v. PSC, 39
Wis. 2d 653, 661, 159 N.W.2d 636 (1968)).
¶37 Next, the court considered the allegedly false
statements identified in the City's brief. It determined that
none of them constituted substantial evidence of
misrepresentation. Id., ¶29. It explained that the City's
assertion that there were misrepresentations that the facility
would be a closed system, which would produce no chemicals or
hazardous materials, was untenable because the statements were
all made in response to questions about the pyrolysis process,
not the facility as a whole. Id., ¶31.
¶38 Further, the court of appeals concluded that the
statement that the char byproduct could be reused was not false.
Id., ¶32. It observed that the DNR's environmental analysis
states that the char could be reused as a beneficial product
subject to approval, and suggested that it "may be suitable for
[] use as concrete additives, flowable fill material, and
16
No. 2013AP591
aggregate for sub-base of roads and stabilization for landfill
cover if it meets certain waste characteristics." Id.
¶39 In regards to the "no smokestacks" comment, the court
acknowledged that the final design of the facility includes
vents that are just a few feet above the building's roof and
none of Oneida Seven's statements could reasonably be
interpreted as a promise that the facility would have no stacks
or vents. Id., ¶¶35-37.
¶40 Lastly, the court concluded that the statements that
pyrolysis and gasification were not new technology were
accurate. Id., ¶¶38-39. The court based this conclusion on the
DOE report, which states that pyrolysis and gasification of
municipal solid waste is used all over the world and includes a
list of 27 facilities worldwide that are currently using or
planning to use municipal solid waste as the primary feedstock.
Id., ¶39. Accordingly, the court of appeals reversed the
circuit court.
II
¶41 We are asked to consider whether the City's decision
to rescind Oneida Seven's conditional use permit was supported
by substantial evidence. There is a presumption that the City's
decision is valid. Edward Kraemer & Sons v. Sauk Cnty. Bd. of
Adjustment, 183 Wis. 2d 1, 8, 515 N.W.2d 256 (1994). On
certiorari review, our inquiry is limited to: "(1) whether the
municipality kept within its jurisdiction; (2) whether it
proceeded on a correct theory of law; (3) whether its action was
arbitrary, oppressive, or unreasonable and represented its will
17
No. 2013AP591
and not its judgment; and (4) whether the evidence was such that
it might reasonably make the order or determination in
question." Ottman v. Town of Primrose, 2011 WI 18, ¶35, 332
Wis. 2d 3, 796 N.W.2d 411 (internal citations omitted).
¶42 Our focus is on the fourth inquiry. We do not review
the judgment or findings of the circuit court but rather we
review the record of the City to whom certiorari is directed.
State ex rel. Harris v. Annuity & Pension Board, 87 Wis. 2d 646,
651, 275 N.W.2d 668 (1979); see also Edward Kraemer & Sons, 183
Wis. 2d at 8 (observing that this court reviews the record
before the Board).
III
¶43 We begin with an overview of the substantial evidence
standard. "'Substantial evidence' is evidence of such
convincing power that reasonable persons could reach the same
decision as the board." Clark v. Waupaca County Bd. of
Adjustment, 186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App.
1994); see also Sills v. Walworth County Land Mgmt. Cmte., 2002
WI App 111, ¶11, 254 Wis. 2d 538, 648 N.W.2d 878 ("Substantial
evidence means credible, relevant and probative evidence upon
which reasonable persons could rely to reach a decision.").
¶44 Although substantial evidence is less than a
preponderance of the evidence, Smith v. City of Milwaukee, 2014
WI App 95, ¶22, 356 Wis. 2d 779, 854 N.W.2d 857, it is "more
than 'a mere scintilla' of evidence and more than 'conjecture
and speculation.'" Gehin v. Wis. Group Ins. Bd., 2005 WI 16,
¶48, 278 Wis. 2d 111, 692 N.W.2d 572. Further, "mere
18
No. 2013AP591
uncorroborated hearsay . . . does not constitute substantial
evidence." Id., ¶53 (internal citations omitted); see also
Williams v. Hous. Auth. of Milwaukee, 2010 WI App 14, ¶19, 323
Wis. 2d 179, 779 N.W.2d 185 (determining that agency decision
based solely on uncorroborated hearsay could not stand). We
acknowledge, however, that the weight to accord the evidence
lies within the discretion of the municipality. Sills, 254 Wis.
2d 538, ¶11.
¶45 In determining whether the substantial evidence test
is met, a court conducting a certiorari review should "tak[e]
into account all the evidence in the record." State ex rel.
Palleon v. Musolf, 120 Wis. 2d 545, 549, 356 N.W.2d 487 (1984).
In other words, a reviewing court should consider the context of
the evidence when determining whether it supports a
municipality's action. See Copland v. Wisconsin Dep't of
Taxation, 16 Wis. 2d 543, 554, 114 N.W.2d 858 (1962).
¶46 This premise is illustrated by Wagner v. Industrial
Comm'n, 273 Wis. 553, 79 N.W.2d 264 (1956). There, the court
considered whether the Industrial Commission's determination
that an employee did not sustain a permanent total disability
was supported by the record. In upholding the Commission's
determination, the circuit court had relied on doctors'
statements that "the man's 'condition continued some time into
August of 1952'; that his hands were 'normal' at that time . . .
[and] that the man was 'completely recovered' by August of
1952." Id. at 564.
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No. 2013AP591
¶47 On appeal, the Supreme Court determined that these
statements "were merely isolated statements taken out of context
which are completely explained by other testimony given by these
same physicians." Id. at 565. It observed that "[t]he trial
court completely overlooked the testimony that all three of
these doctors considered that [the employee's] skin had become
sensitized due to his employment" and that the doctors
"testified that [the employee] should never again return to his
former employment." Id. at 564. Thus, based on the record as a
whole, the court determined that the Commission's decision was
not supported by the evidence. Id. at 565.
¶48 Having explained the substantial evidence standard, we
turn now to the City's decision. Although the City did not
issue a formal written decision, municipal administrative
decisions need not be in writing. See State ex rel. Harris v.
Annuity & Pension Bd., 87 Wis. 2d 646, 660, 275 N.W.2d 668
(1979) (the section of the state Administrative Procedure Act
requiring administrative decisions to be in writing applied only
to hearings of state agencies). "[A] written decision is not
required as long as [the City's] reasoning is clear from the
transcript of the proceedings." Lamar Cent. Outdoor, Inc. v.
Bd. of Zoning Appeals, 2005 WI 117, ¶31, 284 Wis. 2d 1, 700
N.W.2d 87.
¶49 Additionally, a detailed or explicit explanation of
the City's reasoning is not necessary. The decision need only
contain enough information for the reviewing court to discern
the basis of the City's decision. State ex rel. Harris, 87 Wis.
20
 No. 2013AP591
2d 646, 661; see also Valadzic v. Briggs & Stratton Corp., 92
Wis. 2d 583, 591, 286 N.W.2d 540 (1979) ("A general finding by
the Department implies all facts necessary to support it. A
finding not explicitly made may be inferred from other properly
made findings and from findings which the Department failed to
make, if there is evidence (or inferences which can be drawn
from the evidence) which would support such findings.").
¶50 In this case, the basis of the City's decision to
revoke the conditional use permit can be discerned from the
recording of the Common Council's October 16, 2012 meeting and
the recording of the February 21, 2011 Plan Commission meeting.
The motion to rescind the conditional use permit was explicitly
based on the reasons provided by Alderman Sladek: 1) Cornelius
made untruthful statements to city governmental bodies in
response to questions related to the public safety and health
aspects of the project and the project's impact on the city's
environment; 2) those statements were clear and left no
impression of doubt or uncertainty; 3) Cornelius knew his
statements were false; and 4) the subject matter of the
questions was of high importance.
¶51 Although the Common Council did not quote the specific
statements that it determined were untruthful, Alderman Sladek's
descriptions are sufficient to identify them. He described them
as Cornelius's responses "to questions or concerns related to
the public safety and health aspects of the project and the
project's impact on the city's environment" and, more
specifically, Cornelius's responses to commissioners "when they
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No. 2013AP591
asked about emission, and chemicals, and hazardous materials at
this project."10
¶52 It appears that the intentional misrepresentations to
which Alderman Sladek was referring were Cornelius's statements
at the February 21, 2011 Plan Commission meeting. This
inference is supported by the fact that when the Common Council
referred the concerns about the conditional use permit to the
Plan Commission for a hearing, the issue was "whether the
information submitted and presented to the Plan Commission was
adequate for it to make an informed decision whether or not to
advance the [CUP] that was recommended." Consistent with that
inference, in their arguments over whether there were
misrepresentations, the parties referred solely to statements
made during the February 21, 2011, hearing before the Plan
Commission.11
10
Admittedly, it is a close call whether Sladek's
statements are sufficient. Although the court of appeals
determined otherwise, we conclude that Sladek's description of
the alleged misrepresentations made by Cornelius is sufficient
because we can discern which statements Sladek was referencing
by closely examining the record. Accordingly, we need not
address the City's arguments that the court of appeals should
have remanded the case for a fuller explanation of its decision.
11
Contrary to the dissent's assertion, we are not reviewing
the Plan Commission's decision. Our review is focused on the
decision of the Common Council. As discussed above, the Common
Counsel determined that Cornelius intentionally made
misrepresentations to the Plan Commission. Thus, an analysis of
whether the Common Council had a substantial basis for that
determination necessarily includes what statements were made to
the Plan Commission and what, if any, information in the record
shows that those statements were false.
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No. 2013AP591
¶53 Accordingly, we discern which statements the Common
Council determined were intentional misrepresentations by
looking at the questions the Plan Commission posed to Cornelius
and his responses at the February 21, 2011 Plan Commission
meeting. The parties group the statements into three
categories: statements that the facility will have no emissions
or hazardous materials, statements that there will be no stacks,
and statements that this is not new technology.12 We address
each category in turn, assessing whether there is substantial
evidence that the statements were misrepresentations by
Cornelius made with the intent to mislead the City.
¶54 Addressing emissions and hazardous materials, the
first question from the commissioners on this topic asked what
would be left over once the gasification process was complete:
12
We observe that the City's brief relies solely on the
meeting minutes from the Plan Commission's February 21, 2011,
meeting to identify the alleged misrepresentations. However, as
discussed above, our analysis takes into account all of the
evidence. Here, Cornelius's statements were recorded. The
recording is more informative of his actual statements than are
the meeting minutes, which provide only a summary. Thus,
contrary to the City, we rely on the actual statements made by
Cornelius, rather than the summary of those statements in the
minutes.
Uncovering the actual statements required the court to
review the hours of audio-recording in the record. Counsel are
reminded that it is incumbent upon them to provide the court
with a sufficient record of the proceedings that we are to
review. In this case, that should have included transcripts of
the proceedings at issue. However, no transcripts of the
February 21, 2011 Plan Commission Hearing, the March 1, 2011
Common Council meeting, or the October 16, 2012 Common Council
meeting were provided.
23
No. 2013AP591
"there seems to be some concern about some of the——once the
gasification is complete, about some of the——some hazardous
materials being left over, and I wondered if you would address
that."
¶55 Mr. Cornelius's response was limited to what would be
in the syngas after the gasification process was complete and
what would be in the ash: "Um, there is no hazardous material.
What happens is there is some ash that comes out of the deposit—
—the system is closed, so there is no oxygen, so once it's
baked, all the gas is taken out and it's run through what's
called a venturi scrubber, so it takes out any kind of harmful
toxin that would be, that might be in the gas. . . . the ash
that comes out is inert and can be dumped in a landfill or it
can be dumped and mixed with cement as a road base."
¶56 The commissioner followed-up on his initial question,
asking if the emissions identified in the report would be in the
ash: "In the report, under emissions, you refer to some
particulate matter, also hydrogen chloride, nitrogen oxide,
sulfur dioxide, mercuries and dioxins. Now this is all in your
ash?" Either Cornelius or the engineer responded that chemicals
are not in the ash: "That's all taken out in the process." The
commissioner then asked if the chemicals would be in the syngas
that the facility produces: "And it's not in the syngas?" Mr.
Cornelius or the engineer responded "No, it's all scrubbed out."
¶57 The commissioner later asked again whether certain
substances identified in the report would be in the ash: "I
guess, there's some particulate but the rest is dioxins and
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No. 2013AP591
mercuries and all that. Where is that stuff, is it in the ash,
when it's done?"
¶58 Mr. Cornelius or the engineer reiterated that those
substances are not in the ash and stated that those are the only
byproducts from the process: "It's actually, it gets taken out,
that's the only byproduct we have. It's through the scrubbers
and the filters." Mr. Cornelius or the engineer further stated
that the ash, if tested appropriately, could go into organic
farming or be used in asphalt: "they've been tested, can
actually go right into [] for organic farming. I can sell it
right to asphalt companies, they use that in asphalt."
¶59 Next, the commissioner asked whether at this point in
the gasification process the substances identified are removed:
"So all this stuff is now removed?" Either Cornelius or the
engineer responded that at this point the substances would be
removed and further informed the commissioner that studies of
other facilities had been unable to find the substances:
If there's anything present. . . . [T]here was a study
done in this area in southern [sic] municipal waste.
And in, that even states they could not find mercury,
could not find a lot of these things that's not
present. But in these reports, it's just stating from
other sources that these are possible, but in this
plant that there will be none.
After again agreeing with the commissioner's statement that
there would be no dioxins or mercury in the ash, Cornelius added
that "[t]he emissions that will be going out will be acceptable.
And there won't be any of the chemicals that you mentioned."
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No. 2013AP591
¶60 Although numerous individuals at the public hearing
accused Cornelius of stating that the facility itself would have
no emissions or hazardous substances, and that the entire
facility was a closed-loop system, none of these accusations are
supported by the record. As illustrated above, the context of
Cornelius's statements reveals that his statements about
emissions, hazardous materials, and the system being closed were
not about the facility as a whole. Rather, his statements were
in response to specific questions about what would be in the
syngas, what would be in the ash, and what would be present and
happening at specific phases of the process.
¶61 In addition to a lack of any statement that the
facility would have no emissions, the record reveals that
Cornelius actually stated that there would be emissions in
amounts that would meet EPA and DNR standards. Specifically, he
stated that "it will always be under the EPA and DNR standards"
and that "the emissions that will be going out will be
acceptable."
¶62 The fact that there would be emissions from the
facility was also conveyed to Commission members in Oneida
Seven's written submission. In an approximately 50-page section
titled "Emissions," the submission describes in detail possible
emissions and what has occurred at other plants using pyrolysis
and gasification technology. It states that "[t]he output
products of pyrolysis and gasification reactors can contain a
variety of potential process and air pollutants that must be
controlled prior to discharge into ambient air. These include
26
No. 2013AP591
particulate matter (PM), aerosols or tars, oxides of nitrogen
(NOx), oxides of sulfur (SOx), dioxins and furans, hydrocarbon
(HC) gases, multiple metals, and carbon monoxide (CO)."
¶63 Commission members specifically acknowledged the
emissions section of Oneida Seven's submission during the
February 21, 2011 hearing, indicating that they were well aware
of it. For example, one commissioner stated: "I appreciate very
much the submission of a number of studies that are reassuring
that this in fact is less polluting than other processes for
taking care of waste, including landfill itself." Another
stated: "You go into the emissions section——oh, and let me also
thank you for this comprehensive report that you gave to us."
¶64 The Commission further indicated its awareness that
the facility would have emissions by including in the
conditional use permit a requirement that the facility comply
with "Federal and State regulations and standards related to the
proposed use including air and water quality." (Notably absent
from the conditional use permit was a requirement that the
facility have no emissions.) Consistent with this record, the
report of the Plan Commission acknowledged that it had been
aware that the project would have emissions.
¶65 There is no indication in the record that the
statements Cornelius actually made (that the scrubbers remove
the harmful toxins from the syngas and that the dioxins and
mercury would not be in the ash, which could be reused for
beneficial purposes) were false. Opponents of the project who
testified at the October 2, 2012 hearing referred to the DNR
27
No. 2013AP591
permit as support for their assertions that Cornelius lied.
However, that permit provides no support for their position. It
identifies "facility-wide" potential emissions, it does not
state that there would be toxins in the syngas or dioxins or
mercury in the ash.
¶66 Contrary to the allegations, the documents from the
DNR that are in the record support Cornelius's statement that
the venturi scrubber would remove toxins from the syngas. A
summary from a DNR hearing on the proposed facility states that
the syngas will be cleaned: "The Department has confirmed that
the engineering design for the proposed facility is that all
syngas generated by the retort ovens, including startup and
shutdown, will pass through the gas cleaning system." The
summary then explains that the DNR will require compliance with
that process: "To ensure that this is how the proposed facility
will be built, the permit has been amended to include a
requirement that the flare only combust cleaned syngas."
¶67 Likewise, the DNR Pollution Control Permit provides
that "[a]ll syngas generated by the retort ovens, including
during startup, shutdown or malfunction, shall pass through a
gas conditioning system to remove particulates, condensable
organics, moisture, sulfur compounds and other contaminants."
¶68 The Department of Energy made similar statements as
part of its review. For example, the DOE Final Environmental
Assessment explains that "[g]ases pulled from the pyrolytic
converter would first go through a venturi scrubber or
separator. This step washes out carbon particles that may have
28
No. 2013AP591
traveled with the gas from the converter and removes some of the
condensable gases . . . From the venturi scrubber, the gas would
go through a condenser to remove the rest of the condensable
gases." The Final Environmental Assessment further confirms
that "syngas is scrubbed of contaminants prior to combustion and
discharge."
¶69 Mr. Cornelius's statements about the ash being put to
beneficial uses are also supported by the DNR and DOE materials.
The summary of the DNR hearing indicates the possibility that
the ash could be reused, depending on how it tests. It states:
"Oneida Energy's disposal options [for the char/ash] include:
non-hazardous waste to an approved landfill, hazardous waste to
an out-of-state landfill, and beneficial use to a purchaser.
All these options are based on char test results."
¶70 Likewise, the DOE Finding of No Significant Impact
indicates that "[p]rovided the by-products do not exceed
thresholds of pollutants, they could be used for beneficial
purposes." The DOE Final Environmental Assessment also
indicates that "depending on the specific constituent in the
waste product, it is expected that at least a portion of the
waste stream could be usable as a concrete additive or as road
bed material." In sum, we could not find evidence in the record
on which a reasonable person could rely to find that Cornelius's
statements about emissions and hazardous materials were
misrepresentations.
¶71 We turn now to the second category of alleged
misrepresentations: the statements Cornelius made about stacks.
29
No. 2013AP591
The first reference to smokestacks was included in the recorded
presentation Cornelius played for the Plan Commission during the
February 21, 2011 hearing. It stated: "As you can see, there
are no smokestacks such as those associated with coal powered
power plants." Then, during the question and answer portion of
the hearing, in response to Alderman Wiezbiskie's question "No
smokestack?" either Cornelius or the engineer replied "No."
Opponents of the facility asserted that this statement was a lie
because the DNR permit indicated that the project would have
"stacks."
¶72 Again, we focus on context. In terms of the DNR
permit, it is important to acknowledge that the DNR defines
"stack" very broadly, as "any device or opening designed or used
to emit air contaminants to the ambient air." Wis. Admin Code
NR § 400.02(147).13 There is no indication that Cornelius's use
of the term smokestack during his public presentation to the
Plan Commission was a reference to the technical term "stack" as
defined by the DNR.
¶73 To the contrary, it appears that Cornelius's statement
was reiterating the statement made in the recorded presentation.
It had used the term smokestacks as a reference to the stacks
13
Alderman Wizbiskie explained that "a stack in our
nomenclature basically could be a vent off of a plumbing grid.
In other words, you have a vent venting the plumbing piping. A
stack could be what we have in our homes. I have a stack that
comes off my kitchen hood and exhaust to the outside. I have a
stack in my bathroom that vents out through the wall."
30
No. 2013AP591
present at the coal powered power plants. As Cornelius
explained, those stacks are several hundred feet high and twenty
to thirty feet wide. In contrast, the "stacks" at the proposed
facility are exhaust pipes that will be approximately 26 inches
wide and 35 feet tall, rising only 3 feet above the roofline of
the facility.14 Even the commissioners declared that they were
aware the facility would have such vents.
¶74 If the City had not wanted such vents, it could have
added that as one of the conditions to the conditional use
permit. Instead, it conditioned the permit on compliance with
municipal regulations, which permit stacks up to 35 feet above
ground level. Given this context, it would be unreasonable to
conclude that Cornelius's statement that there would be no
smokestacks was an intentional misrepresentation.
¶75 Lastly, we turn to the third category of alleged
misrepresentations: statements that this is not new technology.
At the Plan Commission hearing on February 21, 2011, the
recorded presentation stated that "this technology is not new,
nor is it experimental." Then, during the question and answer
session, one commissioner asked "are any other local communities
14
We acknowledge that there were also some arguments that
the initial drawings of the facility were misleading as they did
not show the stacks. However, this is not one of the
misrepresentations on which the Common Council based its
decision. Its decision clearly referred to statements made by
Cornelius in response to questions about the facility. In any
event, the drawings were preliminary. The commissioners stated
that they were aware the drawings were preliminary, that they
"are used to people coming in with unfinished sketches."
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No. 2013AP591
using this technology?" Mr. Cornelius responded that "in the
state of Wisconsin, we'd probably be the first one." He further
noted that "there are other biogas plants."
¶76 There is nothing in the record to suggest that either
of Cornelius's limited statements was incorrect. It is
undisputed that there is not another facility in Wisconsin
converting municipal solid waste into energy via a pyrolytic
gasification system. Similarly, no one refutes Cornelius'
statement that there are asserts that there are other biogas
plants. Indeed, several are identified in Oneida Seven's
submission.
¶77 Consistent with that submission, the DOE report
acknowledges that "[t]he pyrolysis and gasification of
[municipal solid waste] is used all over the world." It
likewise acknowledges that "[t]oday there are numerous
successful plants in operation around the world and in the
United States that utilize various forms of pyrolysis to process
different resources to produce energy." It specifically points
to a facility in California that used municipal solid waste as
its feedstock.
¶78 Although members of the public testified that they
could not find other facilities using this exact technology on
municipal solid waste that were operating on a commercial scale,
Cornelius did not tell the Plan Commission that such a facility
existed. Given this context, it would be unreasonable to
conclude that Cornelius's statements about the technology the
facility would use were intentional misrepresentations.
32
No. 2013AP591
¶79 The above review reveals that the City's decision to
rescind the conditional use permit was not supported by
substantial evidence. Despite the City's claim that Cornelius
made intentional misrepresentations to government entities in
response "to questions or concerns related to the public safety
and health aspects of the project and the project's impact on
the city's environment," we could find no such
misrepresentations in the record. Thus, Oneida Seven has
successfully rebutted the presumption that the City's decision
was valid.
¶80 Our view of the record is buttressed by the Plan
Commission's findings regarding Cornelius's statements. We
acknowledge that the Common Council is not required to adopt
those findings. However, where the question is whether the Plan
Commission was misled and the Plan Commission unanimously finds
that it was not, we have difficulty reaching another conclusion.
IV
¶81 In sum, we conclude that the City's decision to
rescind the conditional use permit was not based on substantial
evidence. In conducting a certiorari review to determine
whether there was substantial evidence to support a decision, we
consider the evidence in context. Considering the context, we
determine that based on the evidence presented, the City could
not reasonably conclude that the statements by Oneida Seven's
representative to the City government regarding the proposed
facility's emissions and hazardous materials, its stacks, and
33
No. 2013AP591
its technology were misrepresentations. Accordingly, we affirm
the court of appeals.
By the Court.— The decision of the court of appeals is
affirmed.
34
No. 2013AP591.pdr
¶82 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The
Common Council of the City of Green Bay found that
representatives of Oneida Seven Generations Corporation
misrepresented material facts to the Common Council when it
obtained a conditional use permit to construct and operate a
biomass gasification facility. On certiorari review, the Common
Council's factual findings are sustained if any reasonable view
of the evidence supports them. Kapischke v. Cnty. of Walworth,
226 Wis. 2d 320, 328, 595 N.W.2d 42 (Ct. App. 1999). The
majority opinion refuses to follow this and other long-
established legal principles that apply to certiorari review of
a common council decision and thereby errs.
¶83 In this regard, the majority opinion did not accord
the Common Council's decision the presumption of correctness and
validity that the law requires, Driehaus v. Walworth Cnty., 2009
WI App 63, ¶13, 317 Wis. 2d 734, 767 N.W.2d 343. Instead, the
majority opinion substituted its view of the evidence for that
of the Common Council, contrary to law, Clark v. Waupaca Cnty.
Bd. of Adjustment, 186 Wis. 2d 300, 305, 519 N.W.2d 782 (Ct.
App. 1994).
¶84 I conclude Oneida Seven has failed to meet its burden
under certiorari review because a reasonable view of the
presentations made March 1, 2011, when Oneida Seven obtained the
conditional use permit, supports the Common Council's finding
that it was misled. Material misrepresentations were made to
the Common Council in regard to emissions during operation of
1
No. 2013AP591.pdr
the gasification facility and that such a facility was not
experimental because solid municipal waste was being used as the
feedstock in other gasification facilities.1 Therefore, I
conclude that substantial evidence supports the Common Council's
decision to rescind the conditional use permit. Accordingly, I
would reverse the court of appeals decision, affirm the circuit
court's affirmance of the Common Council decision, and
respectfully dissent from the majority opinion.
I. BACKGROUND
¶85 This review focuses on the Common Council's
October 16, 2012 rescission of the conditional use permit
earlier granted to Oneida Seven because the Common Council found
that Oneida Seven's representatives had misrepresented material
facts to the Common Council when obtaining the conditional use
permit. The Common Council found that the misrepresentations
raised public health, safety and general welfare concerns in
regard to hazardous emissions produced at the facility and in
1
Feedstock is defined as "any renewable, biological
material that can be used directly as a fuel, or converted to
another form of fuel or energy product." Biomass Feedstocks,
Office of Energy Efficiency & Renewable Energy,
www.energy.gov/eere/bioenergy/biomass-feedstocks (last visited
March 11, 2015).
2
No. 2013AP591.pdr
regard to the experimental nature of a pyrolytic gasification
facility that would convert municipal solid waste into syngas.2
¶86 In advance of its March 1, 2011 meeting with the
Common Council, Oneida Seven submitted 149 pages of material
that discussed various waste-to-energy methods and also provided
pictorial representations of the facility it was proposing.
Oneida Seven's representatives previously had met with the City
of Green Bay's Plan Commission to explain the project.
¶87 At the Common Council meeting on March 1, 2011, Oneida
Seven's CEO, Kevin Cornelius, and the project manager, Peter
King, made representations in support of the conditional use
permit. During those presentations when questioned about
emissions, Cornelius said, "there are no smoke stacks in it.
For those of us here in Green Bay we know what that means."
This was an important representation because smoke stacks are
used to disburse emissions that are generated by power plants
and other businesses.3 Cornelius's statement was consistent with
the drawings and the power point presentation given to the
2
Gasification is the process of "convert[ing] a solid or
liquid product from coal, petroleum residue, biomass, or other
materials which are recovered for their energy or feedstock
value into a synthesis gas [commonly referred to as syngas]
composed primarily of carbon monoxide and hydrogen for direct
use or subsequent chemical or physical conversion." 26 U.S.C.
§ 48B(c)(2).
3
Questions About Your Community: Power Plant/Industry
Smoke Stack Emissions, United States Environmental Protection
Agency, www.epa.gov/region1/communities/powerplant.html (last
visited March 11, 2015).
3
No. 2013AP591.pdr
Common Council on March 1, which showed no stacks for the
proposed facility.
¶88 Cornelius also represented that the proposed
gasification facility was not based on new or experimental
technology. He said that a system such as was being proposed
for Green Bay was operational in California. He explained that
he "looked at it, the fact that it was operating in California,
that it was permitted there. When we saw it, we knew it was a
good system."
II. DISCUSSION
A. Standard of Review
¶89 This case presents to us on certiorari review of the
Common Council's decision to rescind a conditional use permit it
previously issued. We review the Common Council's decision, not
those of courts that have considered the Common Council's
decision. Bd. of Regents of the Univ. of Wis. v. Dane Cnty. Bd.
of Adjustment, 2000 WI App 211, ¶10, 238 Wis. 2d 810, 618 N.W.2d
537. Upon certiorari review, we are limited to deciding whether
the Common Council "kept within its jurisdiction, acted
according to law, acted arbitrarily or unreasonably, and whether
the evidence was such that the [Common Council] might reasonably
make the order or determination it made." Cohn v. Town of
Randall, 2001 WI App 176, ¶25, 247 Wis. 2d 118, 633 N.W.2d 674.
¶90 In regard to the Common Council's factual findings, we
will not disturb them if any reasonable view of the evidence
supports them. Kapischke, 226 Wis. 2d at 328. In our review,
4
No. 2013AP591.pdr
we accord the Common Council's decision a presumption of
correctness and validity. Driehaus, 317 Wis. 2d 734, ¶13.
B. Certiorari Review
¶91 Before us, Oneida Seven argues only one component of
certiorari review: whether the evidence was such that the
Common Council might reasonably find it had been misled when it
granted the conditional use permit. In order to prevail, Oneida
Seven must prove that under no reasonable view of the evidence
presented to the Common Council on March 1, 2011, could the
Common Council have been misled.
1. General principles
¶92 We review the decision of the Common Council, not that
of the Plan Commission. I bring this to the fore because the
majority opinion rests its affirmance of the court of appeals on
an extensive discussion of the decision of the Plan Commission
and how the Plan Commission supported the conditional use
permit.4 However, it is the Common Council, and not the Plan
Commission, that has the power to issue and to rescind
conditional use permits. See McQuillin Mun. Corp. § 29.120 at
148 (3d ed.); Green Bay, Zoning Code § 13-205(5). The Plan
Commission makes recommendations to the Common Council, § 13-
205(3), and it may hold public hearings at the direction of the
Common Council, id. at (4). However, the Common Council had no
obligation to accept the recommendation of the Plan Commission,
but rather, the Common Council had an obligation to consider
4
Majority op., e.g., ¶¶23, 47, 50-53.
5
No. 2013AP591.pdr
Oneida Seven's request and to make an independent decision on
whether to grant the permit. See Town of Brockway v. City of
Black River Falls, 2005 WI App 174, ¶24, 285 Wis. 2d 708, 702
N.W.2d 418 (concluding that the City was not bound until the
common council decided whether to grant its approval).
¶93 A conditional use permit is not property; it is a type
of zoning designation. Rainbow Springs Golf Co. v. Town of
Mukwonago, 2005 WI App 163, ¶¶12-13, 284 Wis. 2d 519, 702 N.W.2d
40. As the court of appeals explained, "A zoning designation
allows a landowner to use his or her property in certain ways."
Id., ¶13. Therefore, how the gasification system will operate
is material to the conditional use granted to Oneida Seven.
¶94 As we consider Oneida Seven's objection to the Common
Council's rescission as it attempted to protect the health and
safety of Green Bay residents, we must decide whether "taking
into account all the evidence in the record, reasonable minds
could arrive at the same conclusion as the Common Council,"
i.e., that it was misled when it granted the conditional use
permit. See Smith v. City of Milwaukee, 2014 WI App 95, ¶22,
356 Wis. 2d 779, 854 N.W.2d 857 (citation and internal quotation
marks omitted); see also Crystal Lake Cheese Factory v. LIRC,
2003 WI 106, ¶27, 264 Wis. 2d 200, 664 N.W.2d 651) (explaining
that "[t]he reviewing court may not substitute its judgment for
that of an agency").
¶95 In evaluating the evidence, we give the Common
Council's decision a presumption of correctness and validity
because doing so "recognizes that locally elected officials are
6
No. 2013AP591.pdr
especially attuned to local concerns." Ottman v. Town of
Primrose, 2011 WI 18, ¶51, 332 Wis. 2d 3, 796 N.W.2d 411. In
the case before us, the locally elected Green Bay Common Council
was concerned about the health and safety of Green Bay citizens.
¶96 A misrepresentation is a statement of fact.
Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶13, 270
Wis. 2d 146, 677 N.W.2d 233. Here, we review the Common
Council's findings of fact that misrepresentations were made to
it when Oneida Seven obtained the conditional use permit.
Because a court in certiorari review may not substitute its view
of the evidence for that of a common council, we sustain a
common council's finding that it was misled unless no reasonable
view of the evidence will sustain that finding. Ottman, 332
Wis. 2d 3, ¶53.
¶97 During certiorari review, we do not evaluate evidence
to determine whether it could support Oneida Seven's position.
However, that is exactly what the majority opinion has done: it
has evaluated evidence to determine whether it could support
Oneida Seven's position.
2. Rescission
¶98 The Common Council rescinded the conditional use
permit because it found that it was misled in regard to the
project's effects on "public safety and health."5 The Common
Council's concerns were linked to representations in regard to
emissions and in regard to the experimental nature of
5
October 16, 2012 statement of Alderman Sladek.
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gasification facilities that use solid municipal waste as the
feedstock for energy generation.
¶99 Although the Common Council asserts that Oneida Seven
misled it when obtaining the conditional use permit, the Common
Council does not make a claim for actionable misrepresentation;
but rather, the Common Council relies on misrepresentation as
the equitable basis for its rescission of the conditional use
permit.6 See Schnuth v. Harrison, 44 Wis. 2d 326, 337, 171
N.W.2d 370 (1969) (explaining that misrepresentation can be
grounds for rescission).
¶100 In regard to emissions, the Common Council identified
representations that it asserts were false: First, Cornelius
said that there would be no harmful emissions because all of the
toxins would be scrubbed out of the syngas and would not be
present in the greywater that resulted from that scrubbing.
However, contrary to its position before the Common Council, on
April 22, 2011, less than two months after it had secured the
conditional use permit, Oneida Seven submitted to the DNR an
"air pollution control permit application and plans and
specifications," in which Oneida Seven requested permission to
emit toxic materials. Furthermore, on September 9, 2011, the
DNR issued a permit for Oneida Seven's release of
6
Rescission is an equitable remedy. Little v. Roundy's,
Inc., 152 Wis. 2d 715, 722, 449 N.W.2d 78 (Ct. App. 1989).
8
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dioxins/furans,7 cadmium, lead, mercury, hydrogen chloride,
nitrous oxides, sulfur dioxide,8 "fugitive ash," and
formaldehyde. Limitations for those emissions were listed in
the DNR permit.
¶101 Second, Cornelius said the facility would have "no
smoke stacks." Both the pictures and the power point
presentation provided to the Common Council on March 1, 2011,
showed no stacks of any type. The representation that there
would be no stacks supported the representation that no toxins
would be dispersed into the air because all toxins would be
washed out in the internal scrubbing process. However, on
September 9, 2011, the DNR approved Oneida Seven's facility with
7 stacks (three 60 feet tall; three 40 feet tall; one 45 feet
7
"Dioxins are highly toxic and can cause reproductive and
developmental problems, damage the immune system, interfere with
hormones and also cause cancer." Dioxins and Their Effects on
Human Health, World Health Organization site
www.who.int/mediacentre/factsheets/fs225/en (last visited
March 11, 2015).
8
Sulfur dioxide (SO2) has a pungent and suffocating odor.
Sulfur Dioxide, National Institutes of Health: Tox Town,
http://toxtown.nlm.nih.gov/text version/chemicals.php?id=29,
(last updated May 13, 2015). "Current scientific evidence links
short-term exposures to SO2, ranging from 5 minutes to 24 hours,
with an array of adverse respiratory effects including
bronchoconstriction and increased asthma symptoms. These
effects are particularly important for asthmatics."
Environmental Protection Agency site
www.epa.gov/oaqps001/sulfurdioxide/health.html (last visited
March 11, 2015).
9
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tall). Stacks were required by the DNR to disperse toxins that
Oneida Seven's gasification facility will generate.9
¶102 Third, Cornelius repeatedly represented that this
gasification facility would not be experimental because other
gasification facilities used municipal solid waste as feedstock
to generate syngas. He represented that a facility such as
Oneida Seven was seeking was operational in California. He
said, "[we] looked at it, the fact that it was operating in
California, that it was permitted there. When we saw it, we
knew it was a good system." As it turns out, there was no
facility in the United States that used only municipal solid
waste as the feedstock to generate syngas, which is the system
Oneida Seven proposed.
¶103 On October 16, 2012, after gathering information
subsequent to issuing the conditional use permit, the Common
Council reviewed whether it had been misled by the
representations Oneida Seven made, and Alderman Sladek moved to
rescind the conditional use permit based on misrepresentations.
Most of his concerns were directed at the statements of Kevin
Cornelius. He said that Cornelius's statements "were plain
spoken statements, they contained no equivocation."10 Alderman
Sladek said that when Common Council members "asked about
emission, and chemicals, and hazardous materials at this
9
Original DNR Air Permit, R.13, Bates Stamps OSGC286-327
(Sept. 9, 2011).
10
October 16, 2012 statement of Alderman Sladek.
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project, Kevin Cornelius provided false information" on subjects
of "very high importance."11
¶104 Alderman Nicholson remembered "Mr. Cornelius stated
that there was going to be a closed system, no emissions. Over
months, all of [a] sudden there's going to be emissions, and
it's not going to be a closed system."12
¶105 The record of the March 1, 2011 Common Council meeting
shows that Alderman Nicholson's recollection is correct. First,
Cornelius said, "there are no smoke stacks in it. For those of
us here in Green Bay we know what that means. And so,
obviously, the system has to be pretty safe, pretty clean for
that to happen."
¶106 Cornelius was questioned further. He was asked and he
answered:
Q. Is that true that that exhaust, because all of
the treatments you're doing, with the metals and
everything that is in there, that the exhaust is
actually clean[?]
A. Yes.
Q. And also, relative to wastewater, you do such a
good cleaning job that the impurities and
everything are taken out of this water before you
discharge it[?]
A. Yeah. I've got some technical people (pointing
behind him), but it's classified as graywater and
just goes into the regular sewer system.
11
Id.
12
October 16, 2012 statement of Alderman Nicholson.
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¶107 Alderman DeWane spoke next. He said, "The question
here is whether we were told enough . . . . As time went on,
things changed drastically. . . . [T]hings changed. Emissions
changed. Stacks changed. . . . I know that there is no other
plant like this in the United States that burns this waste
fuel."13
¶108 Substantial evidence in the record supports the Common
Council's finding that it was misled when it issued the
conditional use permit. A finding on whether Oneida Seven's
representatives tried to be misleading is not necessary to
support the Common Council's rescission of the conditional use
permit. See Whipp v. Iverson, 43 Wis. 2d 166, 168, 168 N.W.2d
201 (1969) (explaining that "[r]escission of a contract in
equity may be grounded on misrepresentations not intentionally
made").
¶109 The record also shows that the Common Council's
concerns for the health and safety of the people of Green Bay
were addressed when Cornelius said, "there are no smoke stacks
in it. For those of us here in Green Bay we know what that
means. And so, obviously, the system has to be pretty safe,
pretty clean for that to happen." Smoke stacks are used to
expel toxic emissions from power plants, and Green Bay has ample
experience with the emissions from power plants and other
facilities.14 That there were no stacks for the proposed
13
October 16, 2012 statement of Alderman DeWane.
14
"Each year, 48 million tons of toxic mercury alone goes
up in the smoke from coal-burning power plants. Mercury is a
(continued)
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facility led to the Common Council's belief that the facility
would not produce toxic emissions.
¶110 However, the Common Council's belief conflicts with
the DNR's September 9, 2011 determination, wherein the DNR
approved the facility if it had seven stacks——three that were 60
feet tall, three that were 40 feet tall, and one that was 45
feet tall. The DNR also listed the toxins that it anticipated
would be emitted from the gasification facility——dioxins/furans,
cadmium, lead, mercury, hydrogen chloride, nitrous oxides,
sulfur dioxide, fugitive ash, and formaldehyde.
¶111 The DNR determination directly conflicts with
Cornelius's testimony on March 1, 2011, where he answered a
direct question in regard to emissions and toxins:
Q. Is that true that that exhaust, because all of
the treatments you're doing, with the metals and
everything that is in there, that the exhaust is
actually clean[?]
A. Yes.
potent, potentially deadly neurotoxin. Its worst effects are
felt by the young, wrecking havoc with the development of
children's nervous systems, affecting vision, hearing, speech
and motor development. Even the unborn can be poisoned by the
mercury in their mother's blood, and one out of 10 women in
America has mercury levels high enough to affect the development
of an unborn child. In Wisconsin, every single waterway in our
state is listed as containing unsafe levels of mercury."
Melanie G. Ramey, Op-Ed., More Work Needed to Protect Clean Air,
The Cap Times, May 4, 2012,
http://host.madison.com/news/opinion/column/melanie-g-ramey-
more-work-needed-to-protect-clean-air/article_d9b116cc-954b-
11e1-ac67-001a4bcf887a.html.
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Alderman DeWane was correct when he asserted on October 16,
2012, "As time went on, things changed drastically. . . .
Emissions changed. Stacks changed." The DNR permit to emit
certain levels of toxic chemicals is ample evidence of that
change.
¶112 On certiorari review, the Common Council's finding
that it was misled when it issued the conditional use permit is
entitled to a presumption of correctness and validity, Driehaus,
317 Wis. 2d 734, ¶13. Furthermore, representations made when
the Common Council issued the conditional use permit were such
that the Common Council might reasonably rescind the conditional
use permit upon recognition of Oneida Seven's
misrepresentations. Cohn, 247 Wis. 2d 118, ¶25.
¶113 The majority opinion errs because it substitutes its
view of the evidence for that of the Common Council. Clark, 186
Wis. 2d at 305. The majority opinion leads itself astray by
searching the record for evidence to support Oneida Seven's
position that it did not misrepresent when the conditional use
permit was obtained.15 However, whether there is evidence in the
record that cuts against the Common Council's decision is not
the test to apply in certiorari review. Rather, Oneida Seven
must prove there is no reasonable view of the evidence that
15
See, e.g., "[T]he documents from the DNR that are in the
record support Cornelius's statement that the venturi scrubber
would remove toxins from the syngas." Majority op., ¶66. "Mr.
Cornelius's statements about the ash being put to beneficial
uses are also supported by the DNR and DOE materials." Id.,
¶69.
14
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supports the action the Common Council took. Smith, 356 Wis. 2d
779, ¶22.
¶114 Oneida Seven has failed to meet its burden. In regard
to a reasonable view of the evidence, it is interesting to note
that in addition to this dissent, the circuit court also
concluded that a reasonable view of the evidence supported the
Common Council's decision to rescind the conditional use permit.
The circuit court explained,
Cornelius said there are no smokestacks. Obviously,
the system has to be pretty safe, pretty clean for
that to happen. And in the CUP, as you and I both
know, there's drawings that do not indicate any type
of smokestack. . . .
The record at 21-122-23 shows a flat roof
warehouse building, which I think would lead any
reasonable person to believe there are no smokestacks
because it's a completely closed loop process. . . .
There would be nothing——there would be nothing to
associate a smokestack with.
. . . I'm not finding any evidence in this record
that would allow a reasonable person to conclude that
there would (a) be a smokestack or that (b) there
would be a smokestack of this type of dimension, which
is required by the DNR. . . .
. . . .
. . . I'm having a difficult time in reconciling
statements no stacks and then the DNR permit that says
in order to build this facility you must have a 60-
foot stack.
And Seven Generation knows they can't do that
because someone advised them of the building code that
says it can't be higher than 35 feet. . . .
Now we have no idea because there was never any
evidence that I can find in the record that the
redesigned building is going to work, has been tried
and tested. Your client's earlier statement, this
15
No. 2013AP591.pdr
isn't new technology, this is done in California, is
now inconsistent with the plans that are moving
forward, inconsistent with the plans that were
originally approved by the City of Green Bay when they
issued the CUP.
The circuit court's finding that the evidence reasonably
supported the Common Council's decision to rescind the
conditional use permit is uncontroverted by the majority
opinion.
III. CONCLUSION
¶115 The majority opinion errs because it did not accord
the Common Council's decision the presumption of correctness and
validity that the law requires, Driehaus, 317 Wis. 2d 734, ¶13.
It substituted its view of the evidence for that of the Common
Council, contrary to law, Clark, 186 Wis. 2d at 305.
¶116 I conclude Oneida Seven has failed to meet its burden
under certiorari review because a reasonable view of the
presentations made March 1, 2011, when Oneida Seven obtained the
conditional use permit, supports the Common Council's finding
that it was misled. Material misrepresentations were made to
the Common Council in regard to emissions during operation of
the gasification facility and that such a facility was not
experimental because solid municipal waste was being used as the
feedstock in other gasification facilities. Therefore, I
conclude that substantial evidence supports the Common Council's
decision to rescind the conditional use permit. Accordingly, I
would reverse the court of appeals decision, affirm the circuit
court's affirmance of the Common Council decision, and
respectfully dissent from the majority opinion.
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