How often does this scenario play out: Local officials reject a proposed waste management or recycling facility, issuing a seemingly high-handed decision propped up by questionable motives and by slim or outright irrelevant evidence. When the frustrated applicant or developer appeals to the courts, the denial is upheld. Here's the likely reason: the law in most states gives government authorities wide discretion in determining what's best and what works.
If your project gets a thumbs-down from a city council or county board, ask your lawyer if the case falls in the vast middle ground where official discretion runs nearly unchecked. If so, you're probably wasting your time with an appeal.
Now and then, however, local officials radically overstep, acting “in the why and the wherefore [with] neither rhyme nor reason,” as Dromio said in Shakespeare's The Comedy of Errors. Laws vary from state to state, but if your situation compares to what happened in the Minnesota, you may have good shot at getting your project back on track.
Buberl Recycling & Compost (BR&C) applied for a special zoning permit to operate to a composting facility in Chisago County, Minn. The application was referred to the county planning commission, which conducted a public hearing. After considering the evidence, the commission found that the proposed facility had “no significant potential for harmful environmental effects.”
Meanwhile, the county's solid waste administrator visited two composting facilities operated by BR&C — one in-state; the other, out-of-state. Although she found problems that were being taken care of at one site, she found none at the other site. BR&C has “evolved in its way of making compost … and now knows how to make excellent finished compost,” she reported. Imposing conditions in the zoning permit and conducting site visits would assure compliance, she recommended.
Thereafter, the planning commission demanded that BR&C revise its stormwater management plan and tabled the application “to look at the data.” A month later, the county's environmental service director submitted 30 conditions for consideration by the planning commission in the zoning permit.
The planning commission re-opened consideration of the application, and heard from BR&C and its engineering consultant, who addressed the previously expressed concerns. Making 13 adverse findings, the planning commission voted to recommend denial of the zoning application. The county board rejected all but six findings and voted to deny the application.
On appeal, a three-judge panel concluded that the county acted arbitrarily in denying the application. The court reversed the county board decision and directed the county to issue the permit subject to reasonable conditions.
Under Minnesota law, a zoning permit denial is arbitrary if the applicant meets all the standards in the ordinance. BR&C claimed that it met all the requirements and that the county's findings had no support in the record.
For each of the findings, the appeals court combed through the record looking for factual support but found mere scraps of evidence, if any. Moreover, it concluded that the county's criteria were unreasonably vague and subjective. “The county does not identify the overall needs … nor does it specify how [the] proposed composting facility fails to reasonably relate to them,” the opinion stated.
[Buberl Recycling & Compost, Inc. v. Chisago County Board of Comm'rs, No. A08-1958, Minn. Ct. App., Sept. 1, 2009]
Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.
The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].