                                                                       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 App. 2014 – Unpublished)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
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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.


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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."


                                         6
                                                                          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
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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
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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
                                                   11
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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

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                                                                      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.



                                          14
                                                                              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.


                                               19
                                                                         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
                                                  21
                                                                              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.


                                             22
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      ¶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
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"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
                                            24
                                                                    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."



                                         25
                                                                                     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."


                                                  31
                                                                                    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

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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
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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
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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.


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                                                                 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.


                                                   7
                                                                        No.    2013AP591.pdr


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
                                                                   No.    2013AP591.pdr


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

tall).       Stacks were required by the DNR to disperse toxins that
Oneida Seven's gasification facility will generate.9



        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 the smell of "rotten eggs."
"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
       Original DNR Air Permit, R.13, Bates Stamps OSGC286-327
(Sept. 9, 2011).


                                            9
                                                                        No.   2013AP591.pdr


     ¶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
project, Kevin Cornelius provided false information" on subjects
of "very high importance."11




     10
          October 16, 2012 statement of Alderman Sladek.
     11
          Id.


                                              10
                                                               No.   2013AP591.pdr


      ¶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.
      ¶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


      12
           October 16, 2012 statement of Alderman Nicholson.


                                        11
                                                                             No.    2013AP591.pdr


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
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
                                                     (continued)
                               12
                                                                             No.   2013AP591.pdr


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.
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.



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.


                                                    13
                                                                       No.    2013AP591.pdr


       ¶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

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


       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
                                                               No.   2013AP591.pdr


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
      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

                                       15
                                                                    No.   2013AP591.pdr


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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1
