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Scenic Pit LLC v. Village of Richfield

Court of Appeals of Wisconsin, District II

June 28, 2017

Scenic Pit LLC, Plaintiff-Appellant,
Village of Richfield and Jim Healy, Defendants-Respondents.

         APPEAL from an order of the circuit court for Washington County, Cir. Ct. No. 2015CV374 ANDREW T. GONPJNG, Judge. Reversed and cause remanded with directions.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

          HAGEDORN, J.

         ¶1 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)[1]-clean fill facilities-vis-a-vis a municipality's zoning powers and certain other local construction permitting requirements.

         ¶2 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 Village.


         ¶3 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.[2] 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.

         ¶4 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), [3] 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.[4]

         ¶5 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."[5] 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, [6] 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 this order.


         ¶6 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.

         ¶7 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.

         ¶8 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.[7] 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.

         ¶9 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), (3).[8] Our supreme court observed that this may be an expensive process that can take years. See DeRosso, 200 Wis.2d at 659 n. 14.

         ¶10 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).[9] 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.

         ¶11 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.

         ¶12 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.

         ¶13 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 [538]. 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. § 289.22(1m)]."
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.[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. ยง [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 ...

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