Scenic Pit LLC v. Village of Richfield
Scenic Pit LLC v. Village of Richfield
Opinion of the Court
¶ 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)
BACKGROUND
¶ 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.
¶ 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),
¶ 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."
¶ 6. We review the circuit court's grant or denial of summary judgment de novo. Romero v. West Bend Mut. 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.
¶ 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
¶ 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
¶ 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.
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(lm)]."
Wisconsin Stat. § [289.22(lm)] 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.
By providing that certain facilities may be exempted from local approval, the legislature has clearly and*291 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 how, as the City suggests, they could nevertheless be subject to them ....
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In making the determination that clean fill facilities do not pose significant hazards to health and are therefore entitled to an exemption under Wis. Stat. § [289.43(8)], the DNR has not ceded jurisdiction or authority but has proactively exercised its authority to promulgate rules and regulations rendering that exemption effective.
DeRosso, 200 Wis. 2d at 657-59. Thus, the court concluded that § 289.43(8) and § NR 500.08 preempted the City's ordinance under the first Anchor test by expressly withdrawing municipal power to require compliance with local approvals required to construct the clean fill facility.
¶ 14. At oral argument, the Village more or less conceded (as it must) that if DeRosso remains good law, its argument is left with the hair-thin lifeline that zoning is not a local approval under the statute. Hence, the Village directs us to Willow Creek Ranch, LLC v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693, which the Village contends, "walked back the language in DeRosso by limiting the scope of 'local
¶ 15. In Willow Creek, the plaintiffs sought to open a game bird farm where local zoning prohibited it. Willow Creek, 235 Wis. 2d 409, ¶¶ 4, 6. The plaintiffs maintained that DNR licensing scheme for such farms preempted the local zoning ordinance. Id., ¶ 16. The supreme court disagreed and held that the local zoning ordinance did not conflict with the state regulations. Id., ¶¶ 22-23. The court noted DeRosso and other cases but distinguished them because they "involve local ordinances that attempt to regulate the identical activity as the state and that are 'diametrically opposed' to the state's policy." Willow Creek, 235 Wis. 2d 409, ¶ 22 (quoting Wisconsin's Envtl. Decade, Inc. v. DNR, 85 Wis. 2d 518, 535, 271 N.W.2d 69 (1978)).
¶ 16. The Village apparently reads this decision as functionally modifying Anchor and establishing a new test in its place to the effect that local regulation is allowed unless it is "diametrically opposed" to state policy.
f 18. Furthermore, the Village's cabined reading of DeRosso is not reasonable or consistent with the statute. If the Village is right, and clean fill facilities must comply with local zoning, then a municipality could permanently block the construction of a clean fill facility by rezoning to prohibit landfills, or by having no areas zoned for clean fill, or by providing only one or two limited or impractical locations for such facilities. This would be directly contrary to the purpose of Wis. Stat. § 289.43 as interpreted by DeRosso, 200 Wis. 2d at 663 (explaining that by enacting § 289.43(8), the legislature has provided "that so long as the DNR
¶ 19. In sum, Willow Creek is inapposite. This case is not about local zoning versus statewide licensing authority. Rather, the question here is whether this particular statutory scheme preempts local approvals required to construct a clean fill facility by expressly withdrawing the municipalities' power to act. This statutory interpretation question has been settled by DeRosso, which remains authoritative and unmodified. Local approvals required to construct such a facility, as defined by Wis. Stat. § 289.33(3)(d), are preempted and no longer required for exempt clean fill facilities. Because we conclude that the legislature has expressly withdrawn the Village's power to act, we need not address the remaining three Anchor tests. The outstanding question is whether the Village's zoning ordinance and construction storm water and erosion regulations are "local approvals."
¶ 20. Wisconsin Stat. § 289.33(3)(d) defines "local approval" as follows:
any requirement for a permit, license, authorization, approval, variance or exception or any restriction, condition of approval or other restriction, regulation, requirement or prohibition imposed by a charter ordinance, general ordinance, zoning ordinance, resolution or regulation by a town, city, village, county or special purpose district....
Id. The definition then includes a lengthy, nonexhaus-tive list of enumerated statutory local approvals, among them, Wis. Stat. § 61.34 (police powers of the
¶ 21. The zoning ordinance here would seem to squarely fall within the more general stricture, "any requirement... or any restriction . . . imposed by a .. . zoning ordinance." See Wis. Stat. § 289.33(3)(d). And if there were any doubt, Wis. Stat. §§ 61.35 and 62.23, which confer zoning power to villages, are explicitly enumerated as local approvals as well. Because zoning requirements are expressly listed as local approvals in the statute, a clean fill facility like the one Scenic seeks to establish is exempt from any zoning requirements. End of story.
¶[ 23. Among these requirements, a clean fill facility may not be operated within a floodplain. Wis. Admin. Code § NR 504.04(3)(c). These regulations also impose "performance standards" prohibiting the operation of a clean fill facility where it would have a "significant adverse impact on wetlands," cause a "take" of an endangered or threatened species, have a detrimental effect on surface water or groundwater quality, cause "migration and concentration of explosive gases" above certain limits, or emit "any hazardous air contaminant exceeding the limitations for those substances." Section NR 504.04(4)(a)-(f). Additionally, Wis. Admin. Code § NR 500.08(2) requires that all clean fill facilities "shall be operated and maintained in a nuisance-free and aesthetic manner."
¶ 24. These regulations make clear that the free-for-all scenario the Village paints is a tad overstated.
¶ 25. Finally, the parties dispute whether the storm water and erosion permitting requirements contained in the Village of Richfield Municipal Code §§ 167-8 and 167-23 are preempted.
¶ 26. The Village responds that it is required by DNR to obtain its own municipal WPDES permit—a point source permit—for its municipal storm sewers. See Wis. Admin. Code § NR 216.02 (requiring "owners or operators of municipal separate storm sewer systems" to obtain a WPDES permit); Wis. Admin. Code § NR 216.01 (clarifying that municipal storm sewers are point sources under Wis. Stat. § 283.33). The Village declares that the requirements of this municipal WPDES permit (outlined in Wis. Admin. Code § NR 216.07) obligate the Village to maintain a "program to detect and remove illicit discharges . . . into the municipal separate storm sewer system" and a program to regulate storm water runoff from construction sites. The Village asserts that it complied with these obligations by enacting sections 167-8 and 167-23. The Village argues that interpreting Wis. Admin. Code § NR
¶ 27. Although the regulations governing the Village's WPDES permit are complex, the Village's argument is underdeveloped at best, and we need not address it at length. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (explaining that we will not serve as advocate by developing a party's arguments for them). The Village does briefly explain the requirements of its municipal WPDES permit, but—as with its zoning argument—it fails to address the real issue: whether sections 167-8 and 167-23 are local approvals as defined in Wis. Stat. § 289.33(3)(d). Furthermore, the Village does not explain why Scenic's WPDES general permit—which provides coverage for Scenic's "construction site"— does not already satisfy the relevant DNR imposed requirements.
f 28. We see no reason DNR cannot—through Wis. Admin. Code § NR 500.08—create an exception to its own regulations contained in Wis. Admin. Code § NR 216.07, and the Village makes no argument that DNR cannot do so.
¶ 29. Given the sweeping definition of "local approvals," we conclude that the Village's zoning ordinance and construction storm water and erosion regulations are included. The zoning ordinance is expressly enumerated as a local approval, and the definition of "local approvals" is broad enough to include the Village's identified permitting requirements even though they are not expressly enumerated. The Village makes no real argument otherwise. Instead, the Village wishes us to focus on the policy consequences of the preemption analysis rather than the analysis itself.
CONCLUSION
¶ 30. Wisconsin Stat. § 289.43 and Wis. Admin. Code § NR 500.08 have expressly withdrawn the Village's power to require clean fill facilities to comply with local approvals as defined in Wis. Stat. § 289.33(3)(d), among them, zoning and storm water and erosion permitting requirements. Accordingly, we reverse the circuit court's order granting summary judgment to the Village, and remand with directions that the circuit court grant Scenic's motion for partial summary judgment.
By the Court.—Order reversed and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
The landfill proposal became public and generated significant opposition among the residents of Richfield. Some of the residents formed an organization that attempted to inter
All references to the Wisconsin Administrative Code are to the January 2017 version unless otherwise noted.
Wisconsin Stat. §283.35(1) provides that "[i]nstead of issuing a separate permit to an individual point source, the department may issue a general permit applicable to a designated area." A point source is "a discernible, confined and discrete conveyance of storm water for which a permit is required under [Wis. Stat. §] 283.33," like a municipal storm sewer. Wis. Admin. Code § NR 216.002(22).
The complaint also requested a writ of mandamus directing the Village to issue the construction permits it requested. Scenic named the Village Administrator, Jim Healy, as a defendant as well. For ease of reading, we will refer to the Village and Healy collectively as the Village.
Willow Creek Ranch, LLC v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693.
The legislature saw fit to add an unusually extensive list of legislative findings motivating the statewide regulatory scheme here. Among the highlights, the legislature notes that solid and hazardous waste is unavoidable and used by everyone, Wis. Stat. § 289.33(1)(a), (b), but that it often raises
In view of these things, the legislature indicates their intent was to create a comprehensive policy overseeing solid waste disposal and hazardous waste facilities to avoid "[a]rbi-trary or discriminatory policies and actions of local governments which obstruct the establishment of solid waste disposal facilities and hazardous waste facilities," all the while considering the views of local citizens and protecting the environment in an economically viable way. See Wis. Stat. § 289.33(2).
Wisconsin Stat. § 289.31(3) provides that a license "shall not be issued unless the facility has been constructed in substantial compliance with the operating plan approved under [Wis. Stat. §] 289.30." Section 289.30(2) provides that a plan of operation may not be approved unless the applicant first submits a feasibility report.
Wisconsin Stat. § 289.43(8) provides the following:
(a) The department shall conduct a continuing review of the potential hazard to public health or the environment of various types of solid wastes and solid waste facilities ....
(b) If the department, after a review under par. (a), finds that regulation under this chapter is not warranted in light of the potential hazard to public health or the environment, the department shall either:
1. Promulgate a rule specifying types of solid waste that need not be disposed of at a licensed solid waste disposal facility.
DeRosso construed Wis. Stat. §§144.44 and 144.445 (1993-94) and the corresponding regulations. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 547 N.W.2d 770 (1996). These provisions are substantively identical to Wis. Stat. §§ 289.43, 289.33, and 289.22 (2013-14), and the current regulations. For ease of reading, we have changed the statutory cites to the current versions.
The court also found that the ordinance violated the third and fourth Anchor tests. DeRosso, 200 Wis. 2d at 662 (citing Anchor Sav. & Loan Ass'n v. Equal Opportunities Comm'n, 120 Wis. 2d 391, 397, 355 N.W.2d 234 (1984)).
DeRosso also cited Wisconsin's Envtl. Decade, Inc. v. DNR, 85 Wis. 2d 518, 535, 271 N.W.2d 69 (1978), for the proposition that an ordinance that "defeats the purpose of state legislation" is preempted. DeRosso, 200 Wis. 2d at 651 & n.7.
The Village does cite Anchor, but it provides little distinction between the four independent tests the supreme court established. Instead, it blurs the lines between the various Anchor tests by suggesting that a municipality may regulate an activity as long as such regulation is not "diametrically opposed" to a statewide regulatory scheme.
Subsequent case law confirms that DeRosso is still good law and that Anchor remains the controlling paradigm for preemption cases. See, e.g., Lake Beulah Mgmt. Dist. v. Village of East Troy, 2011 WI 55, ¶ 15, 335 Wis. 2d 92, 799 N.W.2d 787 (citing DeRosso with approval and for its preemption test); Apartment Ass'n of S. Cent. Wis., Inc. v. City of Madison, 2006 WI App 192, ¶ 13, 296 Wis. 2d 173, 722 N.W.2d 614 (same).
Wisconsin Stat. § 61.34 provides the following:
(1) General grant. Except as otherwise provided by law, the village board . . . shall have power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public, and may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means.
This "general grant" describes the "police powers" of the Village. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, ¶ 5 n.3, 338 Wis. 2d 488, 809 N.W.2d 362.
Wisconsin Stat. § 62.23(7) grants zoning powers to cities and Wis. Stat. § 61.35 provides that this grant of authority extends to villages as well. Zwiefelhofer, 338 Wis. 2d 488, ¶ 26-27.
"[A] village may enact a zoning ordinance, that is applicable to all of its incorporated area, for construction site erosion control at sites described in [Wis. Stat. §] 281.33(3)(a)l.a. and b. and for storm water management." Wis. Stat. § 61.354(2).
Although the Village claims that these sections are "most pertinent to this appeal"—implying that other requirements exist—its list of required approvals sent to Scenic only includes these two sections. In its briefing, the Village never identifies any other specific sections Scenic is required to comply with. Thus, we only explicitly address these sections.
Village of Richfield Municipal Code Section 167-8 provides that Scenic must obtain a "post-construction runoff permit from the Village of Richfield prior to commencing" construction. Section 167-23 provides that "[n]o responsible party may commence a land disturbing construction activity subject to this article without receiving prior approval of an erosion and sediment control plan for the site and a permit from the Village Engineer."
For example, the definition in DNR regulations clarifies that "discharges authorized by a WPDES permit" are not "illicit discharges." See Wis. Admin. Code § NR 216.002(11). Because Scenic already has a WPDES permit, as long as that permit is followed it would seem—at least upon first glance— that Scenic's activities would not lead to "illicit discharges." Thus, if no illicit discharges exist, then the Village need not be concerned about detecting and removing them. But the Village never fully addresses the interaction between its WPDES permit and the one issued to Scenic.
Because our decision is based on DNR's own administrative rules, nothing would prevent DNR from modifying its rules to require, for example, compliance with local storm water and erosion requirements.
Should we rule in favor of Scenic, the Village argues that granting summary judgment in Scenic's favor is inappropriate. The Village argued in its brief that a genuine issue of material fact exists as to whether Scenic's proposed landfill would comply with the requirement that it be operated in a nuisance free and aesthetic manner per Wis. Admin. Code § NR 500.08. However, upon questioning the Village appeared to concede in oral argument that this factual question is simply not before us at this time, and any ruling in that regard would be premature. Indeed, Scenic requested partial summary judgment on the limited issue of whether it needed to comply with local approvals-—specifically the Village's zoning code and storm water and erosion ordinances. Therefore, the appropriate remedy is for the circuit court to grant the declaratory judgment that Scenic need not comply with any local approvals as defined in Wis. Stat. § 289.33(3)(d). Any dispute over the operation of the landfill is not before us at this time.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.