from an order of the circuit court for Washington County,
Cir. Ct. No. 2015CV374 ANDREW T. GONPJNG, Judge. Reversed and
cause remanded with directions.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
The siting of landfills is, understandably, often fraught
with controversy. In response, the State of Wisconsin has
seen fit to preempt local neighborly battles for the common
good by establishing a statewide landfill regulatory scheme.
This case concerns the scope of that statewide scheme for
solid waste facilities exempt from regulation under WIS.
STAT. § 289.43(8) (2015-16)-clean fill
facilities-vis-a-vis a municipality's zoning powers and
certain other local construction permitting requirements.
Scenic Pit LLC sought to open a clean fill facility in the
Village of Richfield. The Village maintains that a clean fill
facility may not be opened and operated at the site Scenic
wishes to use because it is not zoned for such activities,
and because Scenic must, as a prerequisite, comply with local
construction storm water and erosion permitting requirements
as well. Scenic, relying on DeRosso Landfill Co. v. City
of Oak Creek, 200 Wis.2d 642, 547 N.W.2d 770');">547 N.W.2d 770 (1996),
maintains that the Wisconsin Department of Natural Resources
(DNR) has- pursuant to state statute and the administrative
rules promulgated thereunder- exempted clean fill facilities
from the local approvals identified by the Village, namely,
zoning and certain construction storm water and erosion
permitting requirements. We agree with Scenic and reverse the
circuit court's order granting summary judgment to the
Thomas and Danah Zoulek founded Scenic Pit LLC for the
purpose of operating a solid waste facility. In October 2014,
the Zouleks (through a separate LLC) accepted an offer
contingent on financing to purchase an abandoned gravel pit
in the Village of Richfield. In the days following, Thomas
Zoulek contacted the Village and expressed his desire to use
the gravel pit for a "clean fill" facility-a
landfill that accepts only certain kinds of low hazard waste
under WIS. STAT. § 289.43(8). The Village told Zoulek
that current zoning prevented the property from being so
used. Scenic disagreed and argued that current
zoning allowed quarry restoration, which included using the
property for clean fill. That dispute became moot, however,
when the Village passed an ordinance rezoning the property to
Rs-1-a designation the parties agree conclusively prohibits
use as a landfill, clean or otherwise.
Scenic sought to move forward with the project anyway. It
sent a letter to the Village on March 3, 2015 requesting
specification of any local approvals it needed to operate the
property as a landfill. The Village responded with a list of
requirements-among them, amending the Village's
comprehensive plan, rezoning the property, applying for a
conditional use permit, and obtaining construction storm
water and erosion permits along with approval from the
Village engineer for "an erosion and sediment control
plan." Undeterred, the Zouleks purchased the site of
their proposed landfill on May 21, 2015. That same day, the
Village board met and passed a resolution "directing the
Village Attorney to take any and all measures" to ensure
that Scenic complied with zoning and other local approvals.
Scenic subsequently sought construction permits from the
Village to begin the landfill project, but it did not attempt
to acquire the storm water and erosion permits or a change in
zoning. The Village denied the construction permits. In order
to comply with WIS. STAT. ch. 283 and WIS. ADMIN. CODE ch. NR
216 (Jan. 2017),  Scenic did apply for and obtain a
Wisconsin Pollution Discharge Elimination System (WPDES)
general permit from DNR for "Construction Site Storm
Water Runoff and erosion control.
In light of the opposition, Scenic filed this action seeking
a declaratory judgment that it need not comply with any local
approvals- specifically, the Village's zoning and
construction storm water and erosion control ordinances-and a
permanent injunction "restraining the Village from
interfering with plaintiffs proposed
plan." Scenic moved for partial summary judgment
on whether it was "required to obtain any local
approvals, as defined in [WIS. STAT.] §
289.33(3)(d)." The Village also moved for summary
judgment and sought dismissal of the complaint. The circuit
court denied Scenic's motion and ordered summary judgment
be granted in favor of the Village. The court reasoned that
per Willow Creek,  discussed later in this opinion,
Scenic must comply with all local ordinances unless
"state and local interests are diametrically
opposed." Because the Village's zoning and storm
water and erosion ordinances were not diametrically opposed
to the state interests, the court concluded that Scenic
remained subject to these requirements. Scenic appeals from
We review the circuit court's grant or denial of summary
judgment de novo. Romero v. West BendMut. Ins. Co.,
2016 WI.App. 59, ¶17, 371 Wis.2d 478, 885 N.W.2d 591.
Summary judgment is appropriate when there are no disputed
material facts and the moving party is entitled to judgment
as a matter of law. Id.
The issue before us is whether Scenic is exempt from
compliance with "local approvals" as defined in
WIS. STAT. § 289.33(3)(d), and whether the Village's
zoning and construction storm water and erosion ordinances
are such local approvals. Whether the court properly denied
Scenic's motion for summary judgment depends on
construing various statutes and regulations to determine
whether they preempt the Village's zoning ordinance and
storm water and erosion regulations. These are questions of
law we review de novo. DeRosso, 200 Wis.2d at 652.
We hold, consistent with DeRosso, that Scenic need
not comply with the Village's zoning and construction
storm water and erosion requirements because the legislature
has expressly withdrawn the Village's power to act.
The legislature has designated the regulation of solid waste
facilities like the one proposed by Scenic a matter of
statewide concern, and therefore appropriate for a statewide
regulatory scheme. WIS. STAT. § 289.33(3)(c), (5)(a);
DeRosso, 200 Wis.2d at 650. However, this
designation does not necessarily foreclose local action. A
municipality may regulate matters of statewide concern so
long as "such ordinances do not conflict with ... the
state legislation." DeRosso, 200 Wis.2d at 651.
Ordinances that conflict are preempted by state law.
Id. An ordinance is preempted when any of the
following four tests are satisfied: (1) the legislature has
expressly withdrawn the power of the municipality to act, (2)
the ordinance logically conflicts with state legislation, (3)
the ordinance defeats the purpose of state legislation, or
(4) the ordinance violates the spirit of state legislation.
Anchor Sav. & Loan Ass'n v. Equal Opportunities
Comm'n, 120 Wis.2d 391, 397, 355 N.W.2d 234');">355 N.W.2d 234 (1984);
see also DeRosso, 200 Wis.2d at 651-52. Thus, the
preemption question is generally one that must be answered
with regard to the unique statutory scheme at issue.
The solid waste regulatory scheme prescribes a robust and
comprehensive process involving state and local authorities
for the siting and construction of solid waste facilities.
Before establishing a solid waste facility, an applicant must
file an initial site report with DNR and request an itemized
list of local approvals from the affected municipality.
See WIS. STAT. §§ 289.21 & 289.22(1m).
After the request for local approvals, the affected
municipalities may-by adopting a siting resolution-choose to
participate in a process of negotiation and arbitration
overseen by the waste facility siting board. See
WIS. STAT. § 289.33(6). If a siting resolution is
passed, then negotiation begins between the applicant and a
"local committee" made up of various affected
municipalities. Sec. 289.33(7), (9). If this process fails to
yield an agreement, then the parties may arbitrate the matter
before the waste facility siting board. Sec. 289.33(10). In
addition to the above procedure, the applicant must file a
feasibility report and a plan of operation with DNR. WIS.
STAT. §§ 289.23 & 289.30. After an applicant
jumps through all of the preceding hoops, DNR then issues an
operating license. WIS. STAT. §289.31(1),
Our supreme court observed that this may be an expensive
process that can take years. See DeRosso, 200 Wis.2d
at 659 n. 14.
However, the legislature has given DNR discretion to exempt
certain low-hazard waste facilities-i.e., clean fill
facilities like the one proposed by Scenic-from this more
exacting regulation. See WIS. STAT. §
289.43(8); see also DeRosso, 200 Wis.2d at 653
(explaining that the predecessor statute to § 289.43
"authorizes the DNR to exempt low-hazard waste
facilities" from certain statutory and regulatory
requirements). Pursuant to this statutory authority, DNR
promulgated WIS. Admin. Code § NR 500.08 exempting
operators of clean fill facilities from compliance with
"the requirements of [WIS. ADMIN. CODE] chs. NR 500 to
538." Among the exempted provisions is the requirement
in WIS. ADMIN. CODE § NR 512.06(1) to "apply for
all applicable local approvals specified by a
municipality." See DeRosso, 200 Wis.2d at 653
& n. 10. The scope of "local approval" as
defined in WIS. STAT. § 289.33(3)(d) is addressed below.
Whether WIS. STAT. §289.43(8) coupled with DNR
regulations expressly withdraws the power of municipalities
to require compliance with "local approvals" (as
defined) for clean fill facilities was squarely addressed by
the supreme court in DeRosso. The answer is yes.
In DeRosso, the plaintiffs sought to open a clean
fill facility in the City of Oak Creek. DeRosso, 200
Wis.2d at 647-48. DNR approved the plaintiffs' proposal.
Id. However, citing environmental concerns, Oak
Creek passed a resolution forbidding the operation of a clean
fill facility. Id. As here, the plaintiffs sought a
declaratory judgment and an injunction "restraining the
City from interfering with the proposed plan."
Id. at 649.
Applying the Anchor tests, the Wisconsin Supreme
Court held that WIS. STAT. § 289.43 preempted municipal
authority to enforce "local approval" requirements
for clean fill facilities. DeRosso, 200 Wis.2d at
662. The court noted that this was an exempt clean fill
facility under § 289.43(8). DeRosso, 200 Wis.2d
at 657. Its statutory analysis was as follows:
With limited exceptions which are not applicable here, Wis.
Admin. Code § NR 500.08 exempts clean fill facilities
from compliance with Wis. Admin. Code §§ NR 500 to
. Consequently, an applicant seeking DNR approval for a
clean fill facility is exempt from Wis. Admin. Code § NR
512.06(1), which states that "[a]n applicant subject to
[Wis. Stat. § 289.33] shall apply for all applicable
local approvals specified by a municipality under [Wis. Stat.
Wisconsin Stat. § [289.22(1m)] requires, in pertinent
part, that "[p]rior to constructing a solid waste
disposal facility or a hazardous waste facility, the
applicant shall apply for each local approval required to
construct the waste handling portion of the facility."
DeRosso, 200 Wis.2d at 653 n.10. The exemption
in § NR 500.08 did not, the court explained, simply
restore the City's preexisting authority "to
regulate within the same sphere." Id. at 658.
By providing that certain facilities may be exempted from
local approval, the legislature has clearly and expressly
withdrawn municipal power to act as to exempt facilities such
as the plaintiffs' site....
The regulations, enacted pursuant to an express legislative
grant of authority in Wis.Stat. § [289.43(8)], exempt
clean fill facility operators from the requirement that they
apply for local approvals. If such operators need not even
apply for local approvals, we fail to see ...