Zoning Power Eclipsed

State solid waste management laws supersede a municipal ordinance that blocks expansion of a privately owned landfill, under a ruling by the Maine Supreme Judicial Court. [Sawyer Environmental Recovery Facilities Inc. v. Town of Hampden, et al., 760 A.2d 257 (Me. 2000)]

In 1975, Sawyer Environmental Recovery Facilities (SERF) began operating a solid waste disposal facility on property zoned for industrial use in Hampden. As a landfill was not a permitted use in an industrial zone, the town granted a zoning variance to SERF for its site, with no coverage limitations, but subject to state environmental guidelines and requirements.

SERF closed its original landfill in the early 1980s, and has since operated a series of vertical add-on “phases.” Meantime, the town revised its zoning ordinance, introducing site plan reviews and restricting expansion of nonconforming uses.

State law … ‘remove[s] any authority a municipality may have to prohibit … a private [waste disposal] facility within its borders …,’ the court said.

In 1998, SERF filed an application with the state Department of Environmental Protection (DEP) for a license to begin operating in new areas of the site. Supported by a $50,000 state grant, the town intervened in the application process and hired an independent consultant who reviewed SERF's application. The consultant submitted technical comments on behalf of the town, indicating changes SERF had agreed to incorporate in the project and concluding that “[w]ith these commitments and application changes, the technical issues we have raised have been addressed and our intervenor review is complete.”

Following DEP's approval of the application, local officials announced that the landfill was a nonconforming use that could not be expanded, and declined site plan approval for most of the expansion.

SERF filed suit, claiming, among other things, that the state solid waste management laws preempted the town's zoning ordinance. A Penobscot County Court ruled that the zoning ordinance did not prohibit the landfill. The town appealed to the state supreme court.

The high court found that the ordinance reaffirmed the nonpermitted nature of the landfill, converted the operations to a nonconforming use and, thus, limited its expansion. However, the justices ruled that state law preempted the town from prohibiting expansion. State law created a comprehensive and exclusive regulatory scheme that “remove[s] any authority a municipality may have to prohibit … a private [waste disposal] facility within its borders …,” the court said.

Nevertheless, state law reserves a role for local governments. “[M]unicipalities may regulate external impacts of solid waste management facilities, but may not impose … stricter standards than … in state law,” which precludes “total municipal prohibition” of landfill expansion, the court concluded.

Moreover, the court observed, the legislature could not have intended to create and fund a mechanism for municipal participation in the DEP licensing process and then, after approval, allow the town to negate the proceedings and derail the expansion. The court remanded the case to the town planning board for consideration of local impacts reflected in SERF's site plan application.

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

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.