The No-Zone Layer

A DEFECTIVE REZONING ORDINANCE cannot morph into an enforceable health and safety measure to block the siting of a waste transfer station, according to a Missouri appeals court. St. Louis County, Mo., licenses and regulates the handling of solid waste under its Waste Management Code, which authorizes the county's Department of Health to issue permits for solid waste processing facilities. Meantime, the county mandates a public hearing and a report from its Planning Commission before enacting and amending zoning regulations relating to unincorporated areas.

F.W. Disposal South LLC (FWD) filed an application with the Department of Health to build a transfer station on property located in an “M-1” industrial district, in which a transfer station is a permitted use. While the application was pending, the county enacted an ordinance amending the Waste Management Code to prohibit a transfer station or any waste facility within 1,000 feet of a church, school or residence. Thereafter, the department denied the application, finding, among other reasons, that the proposed facility would be closer than 1,000 feet to a church.

FWD filed suit against the county seeking to prevent enforcement of the new ordinance. The company argued that the ordinance was actually a zoning regulation and that the county had ignored its own procedures and requirements. The trial judge agreed. Finding that the measure was illegally enacted, the court ruled in favor of FWD and enjoined the county from enforcing the ordinance.

On appeal, the county conceded that it did not follow its own zoning amendment procedures, but argued that the ordinance was merely an exercise of the county's police powers and was designed to address health, safety and welfare concerns of county residents. FWD reiterated that the county's ordinance imposed new location and setback restrictions on solid waste facilities and effectively eliminated a formerly permitted land use.

While noting that zoning ordinances may address health and safety concerns and that other types of ordinances also may deal with the same issues without becoming zoning ordinances, the appeals court said the answer to the dispute between FWD and the county depends on the primary purpose of the ordinance.

The court identified three indicators of whether an enactment is truly a zoning amendment: (1) it plainly says so; (2) the enactment is aimed at the uniform development of real estate; and (3) it changes the zoning rules by disallowing a previously permitted land use.

Affirming the lower court judgment, the appeals court found that St. Louis County flunked all three tests. “[T]he ordinance contains no stated purpose, and the county does not argue that [these] facilities inherently constitute a public nuisance.” the opinion stated.

“[T]he ordinance simply limits the locations where [waste processing] facilities may be placed … precluding the operation of a transfer station … where that use had been permitted … .” Unmasking the county's motives, the court stated, “[T]he ordinance primarily attempts to minimize or avoid potential ‘not in my backyard’ complaints from nearby citizens.”

[F.W. Disposal South LLC v. St. Louis County, No. ED84765 (Mo.App., May 24, 2005)]

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