Justices consider city’s right to revoke permit (UPDATE)

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A case argued before the Wisconsin Supreme Court on Thursday will help define when municipalities have the right to revoke a project permit following an initial approval.

The case of Oneida Seven Generations Corp. v. City of Green Bay stems from Green Bay city officials’ 2012 decision to revoke a permit for a plant that would incinerate garbage to produce energy. Approval had been recommended twice by the city’s Plan Commission and made official at a Common Council meeting, despite much public opposition.

Green Bay officials later revoked the permit issued to Oneida Seven Generations Corp., a subsidiary of the Oneida tribe, after contending that the company had provided misleading information about building a trash-to-energy plant within city limits. Specifically, city officials accused the company of not being forthcoming about the operation’s likely emissions.

Yet that explanation did not come, according to court documents, until after the Green Bay Common Council had revoked the permit. The city’s reasons were first presented in writing when the permit revocation was challenged in Brown County Circuit Court.

The court upheld the city’s decision, but judges at the appellate level later reversed the ruling. The appeal’s court decision rested largely on Green Bay officials’ alleged failure to explain the revocation.

Arguing before the Supreme Court on Thursday, Ted Warpinski, a lawyer representing Green Bay, said city Alderman Thomas Sladek in fact offered some reasons at the Common Council’s October 2012 meeting during which the permit was rescinded. Among the grounds then cited by Slade, Warpinski said, was a failure to mention the project would have smokestacks and emissions.

Warpinski said Sladek’s comments referred to a presentation Oneida Seven Generations representatives made at a March 2011 council meeting. Warpinski said company officials then displayed a project rendering that did not show smokestacks.

In rebuttal, Michael Apfeld, a lawyer representing Oneida Seven Generations, argued the court should consider the information presented at the city council meeting in the context of other submissions made by the company. He said Oneida Seven Generations representatives made it clear at other times, both in writing and orally, that the proposed garbage-to-energy plant would have smokestacks and emissions.

Apfeld argued that no reasonable person, presented with all the information, could conclude the city had been misled. He agreed that municipalities have wide discretion in permitting matters but said local officials still must be able to cite “substantial evidence” in support of their actions.

Apfeld said the courts have a right to reverse municipal decisions that appear to have been made for arbitrary and capricious reasons.

Even so, the apparent discrepancies in what was said and submitted by Oneida Seven Generations representatives were a large reason why the circuit court upheld the permit city’s revocation. The judge there argued that courts have established a precedent of deferring to local governments when good reasons can be given for permitting decisions.

But the court of appeals, in reversing the lower court’s decision, argued that Oneida Seven Generations officials never definitively indicated the project would not have vents or emissions.

“No reasonable person,” according to the appeals court’s ruling, “could believe that a gas-burning engine would not produce exhaust, which must be expelled from the facility.”

Several Oneida members Thursday said the case has thrown their tribe into turmoil. Oneida Seven Generations is a wholly owned subsidiary of the Oneidas, said Jason Fitzgerald, a tribe member, and has benefited greatly from access to tribal resources.

Members began turning against the company, Fitzgerald said, following a couple of dubious business propositions. One of those, a plant meant to convert waste plastic into oil, has embroiled the company in a $400 million lawsuit in Cook County, Ill.

As the parent of Oneida Seven Generations, Fitzgerald said, the tribe is exposed to the same legal liabilities as the company. The tribe recently voted to dissolve Oneida Seven Generations, he said, but the company cannot be broken up until the current litigation comes to an end.

“And now they are giving us bad publicity,” Fitzgerald said. “It’s bad enough the other things they have done, but now they are going to lie to get a permit.”

Representatives of Oneida Seven Generations could not be immediately reached Thursday afternoon.

The challenge before the state Supreme Court largely will hinge on questions of how much courts must defer to local governments on permitting matters. City representatives argue the appeals court went too far in stating that Oneida Seven Generations did not provide misleading information, saying such determinations usually are left to local officials.

If the appellate judges found that city officials had not adequately explained themselves, Green Bay representatives claim, the response should not have been overturning the revocation, but rather sending the decision back to the Common Council to let officials provide reasons for their actions.

A decision from the justices is expected later this term, which ends in June. Follow @TDR_WLJDan