High court rejects Richfield’s appeal in landfill case
Scenic Pit LLC has been accepting clean-fill loads over last several weeks

By JOE VANDELAARSCHOT - Daily News

Oct. 12, 2017

Danah Zoulek poses for a photo near the pit on her property Wednesday afternoon on Scenic Drive in Richfield. The state Supreme Court rejected a request from the village of Richfield to hear an appeal of the state Court of Appeals decision reversing the county court’s ruling concerning the operation of Scenic Pit LLC in a former gravel pit.
John Ehlke/Daily News

Richfield property owner Danah Zoulek has won another round in the village’s legal fight to prevent her from opening a clean-fill landfill in an abandoned gravel pit along Scenic Road.

According to online court records, the Wisconsin Supreme Court filed a notice on the court’s website Monday denying the village’s request for a hearing of their appeal of the State Court of Appeals ruling in June that rejected Richfield’s efforts to halt Zoulek’s operation.

The online court notice simply stated “it is ordered that the petition for review is denied, without costs.”

Zoulek said that in the last about two months, she has already accepted about 30 loads of fill at her site.

“I’ve been taking the fill under village ordinance because it allows my property to accept two acres of fill without a permit. I don’t think anyone has even noticed,” Zoulek said. “Over that period there have been no complaints to me or anyone else as far as I know and that was one of the major objections opponents have raised is that the truck traffic would disturb them.”

Village Administrator Jim Healy said the the case is not over yet.

“Our insurance company will continue to fight the case on the village’s behalf,” Healy said. “She (Zoulek) also has to demonstrate that she can operate the landfill in a nuisance free manner.”

He said the village could offer no other comment at this time.

A sign placed outside the pit on the property of Danah Zoulek is seen Wednesday afternoon off of Scenic Drive in Richfield. The state Supreme Court rejected a request from the village of Richfield to hear an appeal of the state Court of Appeals decision reversing the county court's ruling concerning the operation of Scenic Pit LLC in a former gravel pit.
John Ehlke/Daily News

Zoulek believes the finish line has been reached in the case, but feels the village won’t stop trying to shut down her operation.

“I’m no lawyer, but what I understand is that the village has no constitutional claims and the U.S. Supreme Court wouldn’t be the next step,” Zoulek said. “I want to make it clear I’m still willing to work with the village. I’ve never stopped offering to meet with them and to sit down and say ‘let’s talk about this’, but I’ve never had that opportunity.”

In June, the Wisconsin Court of Appeals overturned a Washington County Circuit Court judge’s ruling in favor of the village in a dispute over the proposed opening of the clean-fill landfill.

Village Administrator Jim Healy said earlier that village officials believed the Wisconsin Supreme Court would hear their appeal because “the case is of such significant statewide interest.”

The state Appeals Court said in its ruling that the Legislature has given the DNR discretion to exempt certain low-hazard waste facilities, like the proposed clean-fill facility. The judges ruled that state statutes preempt municipal authority to enforce “local approval” requirements for such facilities.

In documents filed seeking the state Supreme Court to hear their appeal, the village contended the court of appeals decision “made several erroneous statements of law regarding the symbiotic relationship between state regulation and local authority to regulate land use; the decision also fundamentally misapprehends the role the DNR intended to and is realistically able to play.” The village claimed the Court of Appeals also “fundamentally misinterpreted the administrative code provisions governing solid waste facilities ... the court appears to have made a mistake in the regulations that are applicable, and then relied on that mistake as a basis for deciding that local control is rendered moot, the error cannot be harmless.”

The documents went on to say “in addition to practical implications, the court of appeals’ decision seems to assume the DNR fills the regulatory vacuum created by its exemption without ever contemplating whether or how the DNR actually goes about doing so ... moreover, as written, the court of appeals decision could be read even more broadly, to prohibit other land use regulations authorized by the general grant of municipal police powers, such as streets and sidewalks, signs, traffic, etc., that normally bind and are particularly applicable to the operation of a commercial facility such as a landfill. The solid waste facility regulatory scheme was not intended to wrest all control away from local authorities simply because the type of operation is, compared to others in the same field, ‘clean.’” The appeal also claimed several other errors were made by the Court of Appeals in rendering their decision.

Zoulek and Scenic Pit LLC sought a declaratory judgement that it need not comply with local approvals, especially the village’s zoning and construction storm water and erosion control ordinances and a permanent injunction restraining the village from interfering with the business.

Early in the legal dispute, the village told Zoulek zoning prevented the property from being used as a clean-fill landfill. Zoulek and Scenic Pit LLC disagreed and argued the zoning allowed quarry restoration, which included using the property for clean fill.

“Basically we just had roadblocks and politics from day one and they were not willing to work with us at all,” Zoulek said. “The lawsuit was ultimately very expensive. According to open records that I received from the village they spent about $170,000 in legal fees for the village attorney and the insurance company paid about $30,000 to its attorneys to represent the village.”

Zoulek said based on the earlier proposal her business presented to the village “we’d be done by now. We were going to do very minimal restoration. We were even willing to offer it to them as a park.”

The village told Zoulek earlier in the controversy that zoning prevented the property from being used as a clean-fill landfill. Zoulek and Scenic Pit LLC disagreed and argued the zoning allowed quarry restoration, which included using the property for clean fill.

A group of area residents opposed to Zoulek’s operation, Richfield Residents Against Dump (RRAD), have created an online petition to Gov. Scott Walker urging him to take action, although it’s unknown what action he could take to halt the landfill. The petition can be found at: https://chn.ge/2wry8ct.