Former quarry owner, village duel in court over landfill rules

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A state appeals court plans to hear oral arguments Wednesday in a case likely to answer questions left open by a recent Wisconsin Supreme Court decision concerning how much power local governments should have over their own affairs.

The case stems from a dispute between the village of Richfield — northwest of Milwaukee — and Scenic Pit LLC, which operates a dump site for so-called clean fill dirt and gravel. The two parties are at odds over whether the state permits that Scenic Pit has are enough for its business, or if it should have to get additional approvals from local officials.

The dump site at the center of the dispute is part of a roughly 40-acre property in Richfield. The company owners, Danah and Thomas Zoulek, bought the site in 2015 and now live in a farmhouse there. Yet most of the property — 29 acres in total — is taken up by a gravel pit.

Used in the 1960s and ‘70s as the site of a limestone quarry, the pit is now where the Zouleks want to dump gravel and dirt excavated and removed from construction sites. They argue that the state’s solid-waste statutes prevent them from having to get additional, local approval for plans to dispose of clean fill, meaning dirt and other materials taken from sites with no history of contamination.

Despite the Zouleks’ having state approval, Richfield officials tried to set up a roadblock by changing the site’s zoning. Now local officials are saying the Zouleks’ plans can’t move forward without their permission.

Before buying the site in May 2015, the Zouleks notified the village of Richfield of their intentions, thus meeting one of the requirements laid out in state statutes governing solid-waste sites.

The Zouleks’ plan was to fill the former quarry with clean fill and eventually divide the site into residential lots, boosting the land’s value, which had been diminished by the gravel pit.

But once residents got wind of the plan, they complained to village officials. Officials’ response was to modify a local land-use plan with a change that, instead of quarry redevelopment, called for the construction of single-family residences on the Zouleks’ property.

The site’s zoning was also altered. Rather than allow the quarry to be filled, the new designation prohibited the property from being used as a dump site. Village officials notified the Zouleks that they now could not pursue their plans without getting a locally issued conditional-use permit and a zoning change, among other things.

Scenic Pit sued Richfield in Washington County Circuit Court in June 2015. The couple argued that although the principle of home rule — enshrined in the Wisconsin Constitution — gives local governments control over their own affairs, an exception lets state agencies regulate matters of statewide concern. They said clean-fill sites are a matter of statewide concern in part because their location can affect the price of construction projects.

In a decision handed down in September 2015, Washington County Circuit Court Judge Andrew Gonring rejected those arguments. Saying he could find no direct conflicts between the village of Richfield’s rules and state statutes, Gonring concluded that the Zouleks’ pit was not exempt from local approval.

In their appearance before the court of appeals Wednesday, Scenic Pit representatives are likely to repeat many of the arguments they made at the circuit court level.

Representatives of the company contend that Chapter 289 of state statutes was enacted largely to exempt clean-fill sites from the need to get local approval. The chapter was meant specifically to mediate between residents — who often are opposed to dump sites and want local officials to regulate them — and businesses and government agencies that must have some way of dealing with dirt removed from construction sites.

Proponents of statewide standards argue that greater local control could prevent dump sites from being opened where they are most needed. Construction costs would skyrocket because companies would have to haul waste materials greater distances. The existence of only a few dump sites would also give the owners a quasi-monopoly, allowing them to jack up prices largely without fear of being undercut by competitors.

As support of its argument, Scenic Pit is pointing in part to the case of DeRosso v. City of Oak Creek, which the state Supreme Court handed down in 1996.

In DeRosso, the justices found that a Milwaukee County judge had properly enjoined Oak Creek from enforcing a local ordinance that would have prevented a particular property from being used as a clean-fill site. The justices argued that the ordinance was clearly not in keeping with the state’s solid waste statutes, which the parties in the case had agreed were a matter of statewide concern.

In Richfield, village representatives are aware of the DeRosso precedent but argue that their situation is different. Their rules, they contend, co-exist with the state’s solid waste siting rules, so no preemption exists.

Joseph Mirabella, a lawyer representing the village, declined to comment for this story.

Besides DeRosso, the appeals court is likely to be influenced in the Richfield case by the Wisconsin Supreme Court’s decision in Milwaukee Police Association v. City of Milwaukee. That decision, handed down in June, clarified that the principle of home rule does not give Milwaukee an exception to a recently adopted state law forbidding local governments to impose residency requirements on public employees.

The court found that the state law is facially uniform, meaning it does not single out particular local governments but rather applies to them all equally.

“It would seem that this preemption issue is taken care of,” lawyer for Scenic Pit, Bruce McIlnay said. “The next question is, ‘What does that preemption mean?’” Follow @erikastrebel