Oneida Seven Generations Corporation v. City of Green Bay
2015 WI 50
Wis.2015Background
- Oneida Seven Generations (Oneida Seven) applied for and obtained a conditional use permit (CUP) from the Green Bay Common Council to build a municipal solid-waste-to-energy facility using a pyrolytic gasification/pyrolysis system; the application included a 149‑page report addressing emissions, drawings, and an "Emissions" section.
- The Plan Commission unanimously recommended approval after a presentation and Q&A during which Oneida Seven representatives said certain process streams (syngas, ash) would be cleaned/scrubbed and that there would be no "smokestacks" like those at coal plants; commissioners acknowledged the facility would have emissions and required DNR/DOE approvals as permit conditions.
- The Common Council initially granted the CUP (10–1). Oneida Seven later obtained DNR and DOE permits; the DNR permit required stacks (later reduced to 35 feet) and set emission testing and limits.
- After public objections, the Council directed a Plan Commission hearing to determine whether the CUP was obtained by misrepresentation; the Plan Commission unanimously found Oneida Seven did not misrepresent and that it had adequate information.
- The Common Council rescinded the CUP (7–5), finding that CEO Kevin Cornelius made untruthful, unambiguous statements about emissions, hazardous materials, stacks, and the novelty of the technology. Oneida Seven sought certiorari review; the circuit court upheld rescission, the court of appeals reversed, and the Wisconsin Supreme Court affirmed the court of appeals.
Issues
| Issue | Plaintiff's Argument (Oneida Seven) | Defendant's Argument (City of Green Bay) | Held |
|---|---|---|---|
| Whether the Common Council's rescission of the CUP was supported by substantial evidence (certiorari fourth inquiry) | The Council's rescission was arbitrary; record does not show intentional misrepresentations—statements were about parts of the process, not whole‑facility promises | Council relied on misrepresentations (no emissions/smokestacks/novel tech/char reuse) and may rescind if CUP obtained by misrepresentation | Held: Rescission not supported by substantial evidence; reasonable persons could not conclude Cornelius intentionally misrepresented emissions, stacks, or novelty given the full record. |
| Whether statements about emissions/hazardous materials were false or misleading | Statements referred to specific process streams (syngas, ash) and to scrubber effectiveness; DNR/DOE materials supported those representations | Statements implied a closed system/no emissions for the facility and thus were false once DNR permits authorized emissions | Held: Context shows statements addressed syngas/ash and acknowledged emissions would meet EPA/DNR standards; record does not support finding of misrepresentation. |
| Whether statements that there would be "no smokestacks" were misrepresentations | "No smokestacks" was a colloquial reference to large coal‑plant stacks; the facility would have small exhaust vents/stacks within municipal limits and DNR/City approvals | The DNR permit identified stacks; claiming "no smokestacks" misled Council about emissions dispersion | Held: In context, "no smokestacks" meant no large smokestacks; small vents/stacks were disclosed or contemplated and compliant with local code—not a misrepresentation. |
| Whether statement that the technology was "not new" was false | Pyrolysis/gasification is used worldwide; Oneida Seven did not claim an identical existing municipal‑scale MSW plant in Wisconsin | The project was experimental for using MSW feedstock commercially in U.S.; statement minimized novelty and risk | Held: Statements accurate in context (technology used globally and there are biogas/gasification plants); not a substantial‑evidence basis for rescission. |
Key Cases Cited
- Edward Kraemer & Sons v. Sauk Cnty. Bd. of Adjustment, 183 Wis. 2d 1 (1994) (presumption of validity for municipal decisions).
- Ottman v. Town of Primrose, 332 Wis. 2d 3 (2011) (scope of certiorari review and four‑part inquiry).
- Clark v. Waupaca County Bd. of Adjustment, 186 Wis. 2d 300 (Ct. App. 1994) (definition of substantial evidence).
- Gehin v. Wis. Group Ins. Bd., 278 Wis. 2d 111 (2005) (substantial evidence requires more than conjecture; hearsay limits).
- State ex rel. Palleon v. Musolf, 120 Wis. 2d 545 (1984) (consider all evidence on record; context matters).
- Wagner v. Industrial Comm'n, 273 Wis. 553 (1956) (isolated statements taken out of context are insufficient).
- Robertson Transp. Co. v. PSC, 39 Wis. 2d 653 (1968) (decision must reflect considered reasoning, not unconsidered whim).
- State ex rel. Harris v. Annuity & Pension Board, 87 Wis. 2d 646 (1979) (municipal administrative decisions need not be written; transcript may suffice).
- Lamar Central Outdoor, Inc. v. Bd. of Zoning Appeals, 284 Wis. 2d 1 (2005) (sufficiency of municipal reasoning on record).
- Smith v. City of Milwaukee, 356 Wis. 2d 779 (Ct. App. 2014) (substantial evidence is less than preponderance but more than scintilla).