Lured and Luckless

A LOCAL GOVERNMENT CAN shut down a waste transfer station that violates zoning requirements, even when officials had assured the operator that the facility could be lawfully constructed, according to a ruling by a Wisconsin appeals court.

Brown County has contracts with the Oneida Tribe and 13 municipalities to collect and dispose of their waste. Anticipating that the county landfill would reach capacity soon, the county signed an agreement to transport waste to landfills owned by nearby jurisdictions. To reduce truck traffic, the county decided to build a transfer station on property it owns in the village of Hobart.

The county met with village officials who stated that the intended site was properly zoned for the proposed use. The village zoning map was ambiguous. The parties agreed on an arrangement under which the county would own the transfer station and pay the village an annual franchise fee. Their memorandum of understanding (MOU) concluded by stating that the village intended to approve the facility's construction and to negotiate a 30-year contract for its operation.

Relying on the village's statements, the county hired an engineering firm that prepared plans and drawings, and obtained the necessary state approvals. Meanwhile, the village notified residents about the proposed transfer station. After the village's site review committee approved the proposed development, the county solicited bids and awarded the construction contract.

Shortly thereafter, the village board notified the county that it had rescinded the MOU, responding to protests from local residents. In fact, the site was zoned as an agricultural district where waste facilities are not acceptable uses. The village clerk then refused to issue any permits for the facility. Although construction had not begun, by then the county had incurred $130,000 in engineering fees.

On the advice of its legal counsel, the county proceeded with construction without a building permit. The village promptly filed suit against the county seeking to ban the transfer station because its use was not permitted under the zoning ordinance and the county lacked a building permit. The trial court refused to block the construction, saying that the county had reasonably relied to its detriment on what the village said about zoning compliance. While the lawsuit was pending, the county completed the transfer station.

On review, the state court of appeals found that the county had failed to prove it justifiably relied upon the village's pre-construction actions. Acknowledging that the county already had invested much time and money when the village did its turnabout, the court nevertheless stressed that “when the county began … construction … it was no longer relying upon the village's representations” about zoning. “Instead, it was relying upon its corporation counsel's advice” that state law gave the county the right to ignore the zoning and build the facility without any village permits. The court reversed the judgment and remanded the case to the lower court for a hearing on whether the violation must be abated — that is, whether the county could be forced to demolish the facility.

[Village of Hobart v. Brown County, 2004 WL 330099, Feb. 24, 2004]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.