Conditional Use: High court to weigh in on permitting dispute.

Byline: Erika Strebel, erika.strebel@wislawjournal.com

When local officialsplaced additional insurance requirements on Enbridge Energy Co. in 2015 as part of granting a conditional-use permitfor a pipeline project in northeast Dane County, company officialswere quick to file an appeal.

Yet before that challengecould besettled, state lawmakers had separately passed a bill banning the imposition of such insurancemandates during the permitting process. Now the Wisconsin Supreme Court is being asked to decidewhich should take precedence: the new state law or the local insurance requirements?

At the heart of the case is a conditional-use permit that Enbridge Energy Co. had sought so it could increase the volume of crude oil that it pumps through an interstate pipelinetraveling partly through northeast Dane County. The project would require the expansion of a pump station in the town of Medina.

A local zoning committee approved the permit in April 2015 after adopting 12 conditions, two of which were related to insurance.

Enbridge appealed the committee's decision to the county board, specifically challenging the two insurance requirements. Before the countycould take up the appeal, though, the state Legislature had adopted Wisconsin Act 55, which prohibits counties from requiring interstate-pipeline operators that already have comprehensive general-liability insurance to get additional insurance to cover things like bodily injuries and property damage resulting from accidental and sudden pollution.

After Act 55had taken effect, on July 14, 2015, the Dane County zoning administratorresponded to the new lawby striking the two insurance conditions from the permit. But in September of the same year, officials on the zoning committeeconcluded it was in fact they who have the sole authority to modify the permit. Theydecided to retainthe two insurance conditionsbut added a notestating the requirements were unenforceableas long as Act 55 remained in effect.

Enbridgeresponded by again appealing to the county board, which this time upheld the zoning committee's latest version of the permit.

Enbridge then went, in January 2016, to Dane County Circuit Court to petitionfor a judicial review, asking the court to require the zoning committee and board either to remove the two insurance conditions or to declare them void.

That was far from the end of the legal wrangling. A month later, a group of landownersfiled a lawsuitin Dane County, seeking an injunction...