During the transition period for the new law, local governments also face other issues related to regulation of livestock facilities using conditional permits. The remainder of this article shares answers to some questions frequently asked by local governments.
Q1. Can a local government issue conditional use permits using less stringent standards than those found in ATCP 51 during the interim period between May 1 – November 1? In other words, if we already have a local ordinance in place before the effective date of ATCP 51, can we apply the standards from the ordinance during the interim period or do we have to use the standards in ATCP 51?
A1. If a local government requires local approval of livestock facilities, it must grant or deny approval based on the standards in ATCP 51 – it may not apply less stringent standards. A local government may apply ATCP 51 standards without explicitly incorporating those standards in the local ordinance until November 1, 2006.
Q2. What if we adopted a local ordinance before May 1, 2006 and it contains standards more stringent than ATCP 51? Can that ordinance be applied during the interim period?
A2. A local government may not apply more stringent standards unless it has complied with the requirements of ATCP 51. Among other things, it must enact these more stringent standards based on reasonable and scientifically defensible findings of fact adopted by the local governing body. The findings must clearly show that the more stringent standards are needed to protect public health or safety. If a local government denies a siting application based on the more stringent standards, the permit applicant may ask the state Livestock Facility Siting Review Board to review whether the local government met the criteria for applying those standards.
Q3. We adopted a zoning ordinance two years ago that requires approval for facilities with 600 or more animal units. What happens if on August 1, 2006, an individual wants to construct a new livestock facility with 550 animal units? Must we use the 500 animal unit threshold referenced in the siting law or can we use the one in our ordinance?
A3. A local government can use the threshold in its ordinance as long as it meets the requirements in the siting law. Under the siting law, a local government may not set a threshold lower than 500 animal units unless that threshold existed in the ordinance, prior to July 19, 2003. A local government may choose a threshold over 500 animal units if it wishes to do so.
If an existing ordinance has a threshold of 600 animal units, that threshold remains in effect until the local government changes its ordinance. As long as the local permit threshold remains at 600 animal units, no local approval is required for a 550 animal unit facility.
Q4. Some time before May 1, 2006, our zoning department issued a livestock operator a conditional use permit for 350 animal units. Again before May 1st, the livestock operator increased the animal units on his farm to 900 without obtaining a new CUP. What can the local government do now about this violation of the permit?
A4. The local government cannot treat the operator the same as a livestock facility that expands to 900 animal units after May 1, 2006. For expansions occurring after May1st, the local government may require the operator to obtain approval under siting law (if the expansion meets the criteria in the siting rule, ATCP 51). For permit violations prior to May 1st, the local government may take appropriate action under local law to penalize or enjoin the violation. In settlement of such an enforcement action, the local government could agree to consider an after- the-fact application, under ATCP 51, to approve the 900 animal unit operation. This settlement would be in lieu of an order requiring the operator to conform to the existing 350 animal unit permit limit.
Q5. Assume the same facts as Question 4, except the original permit does not set a maximum number of animal units as a part of the permit. What can the local government do about an expansion to 900 animal units before May 1st.