Appeals court upholds 1996 decision, letting pit accept clean-fill materials

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Thanks to a recent Wisconsin Court of Appeals decision, landowners who are looking to use their land for the disposal of “clean fill” have no reason to worry about local governments standing in their way.

The ruling stems from a dispute between Danah and Tom Zoulek, the owners of a disposal site in Washington County’s village of Richfield, and local officials. Through their company Scenic Pit LLC, the Zouleks had proposed using the site to dispose of waste from various nearby construction projects.

The Zouleks insisted that their plans called for accepting only accept “clean” fill, usually meaning gravel and dirt taken from sites with no history of contamination. Local officials did not accept their assurances, though, saying in part that they didn’t believe all environmental or health hazards had been eliminated.

With its decision in the case, the Wisconsin Court of Appeals did not break new ground. In fact, it did little more than uphold a precedent the Wisconsin Supreme Court had set in 1996. But even though victory in this case might not have shaken the legal world, that did not make it any less sweet to the Zouleks.

It not only meant the couple can now open their pit to trucks coming from construction sites. It also reinforced the notion that local governments have no business trying to set limits on the disposal of solid waste.

The Zouleks’ dispute centered on roughly 40 acres the Zouleks bought in Richfield in 2015. The site is taken up both by a farmhouse where Danah Zoulek now lives with the couple’s children and a 29-acre gravel pit.

Used in the 1960s and ‘70s as a limestone quarry, the site is now where the Zouleks want to start taking in truckloads of clean fill. The Zouleks’ plan was to fill the former quarry in and eventually divide the site into residential lots, boosting the land’s value, which had been diminished by the presence of the gravel pit.

Danah Zoulek, who drove dump trucks in Ramadi, Iraq, while she was with the Army’s 983rd Engineering Battallion, said she also has plans to use the pit as a training site for Army earth movers.
“What are they going to do?” she said. “Run into a hill? They can’t ruin anything on the pit.”

But once residents got wind of the plan, they complained to village officials, who responded by changing the site’s zoning and contending the Zouleks’ plans couldn’t move forward without getting storm-water and erosion permits from the village.

The Zouleks went to court in June 2015 seeking a declaration that they were exempt from having to get those permits for their pit. Their main contention was that although the Wisconsin Constitution’s principle of home rule gives local governments control over their own affairs, the state’s solid-waste statutes carve out an exception for landfills and clean-fill sites.

The case did not go well for the Zouleks at first. In a decision handed down in September 2015, Washington County Circuit Court Judge Andrew Gonring concluded that the Zouleks’ pit was not exempt from local approval, saying he could find no direct conflicts between the village of Richfield’s rules and state statutes involving the disposal of solid waste.

In later finding in favor of the Zouleks, a three-judge panel of the state court of appeals said its decision in the case was determined largely by precedent.

“Leaving the regulation of clean fill facilities to DNR may or may not be good policy, but it is what the legislature and DNR have done through statute and administrative rule (as interpreted by the supreme court),” according to the decision. “And that is what must dictate the outcome.”

Tom Zoulek, a project manager at Butler-based Mid City Plumbing & Heating, said he was happy with the decision.

“It’s very rewarding to have this appeal come back in our favor and be written as strongly as it is,” he said.

Tom Zoulek said the decision made it clearer than before that local governments have very little power over clean-fill sites. He said contractors like Mid City often have a tough time getting rid of clean fill, which is sometimes also referred to in the industry as spoil.

“It’s going to be very helpful for the construction industry,” he said. “Trucking and getting rid of spoil is very expensive.”

Danah Zoulek noted that the precedent cited in her case stems from a decision the state Supreme Court handed down in 1996 in DeRosso v. City of Oak Creek. 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 found 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.

“I was literally was shocked when the circuit court ruled against us because the law was so clear,” Danah Zoulek said. “The Court of Appeals decision really restored my faith in the justice system. For a while, I was convinced that politics would outweigh common sense.”

But there is no guarantee the case is closed. Expressing disagreement with the Court of Appeals’ decision, village officials have said the pit is still out of conformance with two provisions of the state’s administrative code that were cited by the appeals court. Reached last week, Village Administrator Jim Healy said local officials now plan to submit an appeal to the Wisconsin Supreme Court.