Aim Dev. (Usa), LLC v. City of Sartell

• Decision Date: 04 March 2019
• Docket Number: A18-0443
• Citation: 925 N.W.2d 255
• Parties: AIM DEVELOPMENT (USA), LLC, Appellant, v. CITY OF SARTELL, Respondent.
• Court: Minnesota Court of Appeals

925 N.W.2d 255

AIM DEVELOPMENT (USA), LLC, Appellant,

v.CITY OF SARTELL, Respondent.

A18-0443

Court of Appeals of Minnesota.

Filed March 4, 2019

Review Granted May 28, 2019

Brian S. McCool, Joseph J. Cassioppi, Jonathan P. Baker, Fredrikson & Byron, P.A., Minneapolis, Minnesota (for appellant)

John M. Baker, Aaron P. Knoll, Greene Espel, PLLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Reilly, Judge; and Bratvold, Judge.

REILLY, Judge

Appellant-landowner challenges the district court’s grant of summary judgment in favor of respondent-city. Because appellant’s right to continue the prior nonconforming use is determined by the uses allowed under the terms of the permit transferred to appellant, we affirm.

FACTS

Appellant AIM Development (USA), LLC (AIM) is a subsidiary of American Iron & Metal, specializing in the demolition of structures and metal recycling. AIM currently owns a former paper mill site and landfill in Sartell, Minnesota. Respondent City of Sartell (Sartell) is a municipality located primarily in Stearns County and is the local permitting authority for the land-use permit at issue in this case.

In 1984, AIM’s predecessor-in-title¹ received a permit from the Minnesota Pollution Control Agency (the MPCA) to construct and operate an industrial solid waste land disposal facility in Sartell. The landfill was used to deposit and store waste generated in conjunction with a paper mill, situated at a nearby, but detached location. The permit provided for a 70-acre site, within which 27 acres were engineered for ash disposal. The permit only authorized the deposit of non-hazardous industrial waste. The permittee was required to give advance notice to the MPCA of "alterations or additions" to the facility, or "activity that may result in noncompliance with ... a condition of the permit." The permit was transferrable only with the "express written approval of the MPCA," and provided that "[a] person to whom the permit has been transferred shall comply with the conditions of the permit." The initial permit was valid for a period of five years.

Facilities for the disposal of non-hazardous and nontoxic industrial solid waste, such as the facility approved in the 1984 permit, were considered a permitted use of land in I-1 Light Industrial district in Sartell from 1984 to 1989. During that time, Sartell’s zoning ordinance defined "Industrial storage and disposal facility" as "[a] facility permitted by [the MPCA] ... for the disposal of non-hazardous and nontoxic industrial solid waste." "Industrial solid waste" was defined as "[n]on-hazardous, nontoxic waste material resulting from an industrial operation" and explicitly excluded "garbage, refuse and other discarded materials, animal waste, fertilizer or solid or dissolved material from domestic sewage."

Sartell amended its zoning ordinance in 1989. The amendment rendered industrial, non-hazardous landfills a non-permitted use of the land where the landfill was located.² While the landfill did not conform to the new zoning ordinance, it continued to operate as a legal nonconforming use in Sartell between 1989 and May 2012, collecting waste generated exclusively in conjunction with the operation of the paper mill. No other industrial waste from any other sources was accepted at the facility between 1984 and 2012.

The MPCA reissued permits for the landfill in 1992, 1997, 2004 and 2009.³ The 1997 permit reissuance application noted that the landfill was only permitted to accept wood yard waste, boiler ash, and scrubber cake from the paper mill. The application limited the use of the landfill as follows: "Public Access: The Solid Waste Storage and Disposal Facility will be used solely by [the permittee] and will not be made available to the public or municipal waste haulers." The application identified certain activities prohibited at the facility, including "[d]isposal of any wastes not identified in [the 1984 permit] without written approval from MPCA." The application noted that the landfill was "privately and solely owned" by AIM’s predecessor-in-title, and "[n]o other industrial waste from any other generator is accepted at this facility." The permittee represented that "[o]nly specifically named non-hazardous industrial waste from the Sartell Mill is accepted at this facility. This is limited to boiler ash, boiler scrubber cake, and wood yard waste."

The 2008 permit reissuance application, like the 1997 application, noted that the landfill only accepted certain types of waste materials, including wood yard waste, paper mill bar screenings, wastewater grit, boiler ash, and scrubber cake, generated by the paper mill operations. The application reiterated that the facility was "privately and solely owned" by AIM’s predecessor-in-title, and "[n]o other industrial waste from any other generator is accepted at this facility." The application noted that "[o]nly specifically named non-hazardous industrial waste from the Sartell Mill is accepted at this facility," including boiler scrubber cake and wood yard waste. The MPCA approved the application and reissued a final permit in March 2009, expressly limiting waste activities to wood yard waste, paper mill bar screenings, wastewater grit, boiler ash, and scrubber cake generated by the paper mill. The 2009 permit was to expire in March 2014.

AIM’s predecessor, Verso, ceased operating the paper mill in May 2012, after the mill was significantly damaged in an explosion and fire. In January 2013, AIM purchased the paper mill site and the landfill from Verso. AIM specializes in the demolition of structures and metal recycling and identifies its "core business [as] metal recycling." And AIM’s expressed interest in acquiring the paper mill and landfill was to "salvage out [and] demolish all but [two] buildings down to the ground level and then flip the properties for resale." AIM’s witness acknowledged that it has not used the site for any kind of disposal since its purchase, and has no plans to construct a new paper mill on the site of the former paper mill.

In February 2013, Verso and AIM submitted a letter to the MPCA requesting a modification to the 2009 permit "solely to reflect the change in ownership" of the facility to AIM. Neither Verso nor AIM sought any other type of modification to the terms and conditions of the 2009 permit. Instead, the letter notified the MPCA that "[a]ny other Permit modifications occasioned by changes in operation under AIM’s ownership" would be pursued by AIM after the transfer. The MPCA reissued the permit in June 2013, authorizing transfer of ownership from Verso to AIM. The permit, as transferred from Verso to AIM in 2013, provided that the facility could only accept certain types of waste, and that no waste from any location other than the paper mill could be deposited in the landfill. AIM’s vice president recognized that, as of the date of sale, "only waste coming from [the] Sartell mill was going into that landfill."

In January 2014, AIM submitted an application to the MPCA seeking authority to deposit waste generated from operations other than the paper mill into the landfill. Specifically, AIM sought permission to deposit items including industrial waste, construction and demolition debris, certain medical wastes, dried paints and solvents, aluminum, steel, glass, and hardened construction plastics, without limitation as to the source or nature of the waste. It is uncontested that the 2013 permit transferred from Verso to AIM did not authorize this type of waste in the landfill.

Sartell objected to AIM’s permit renewal application on the grounds that AIM had neither applied for nor received local approvals and licenses for operation of the landfill, and that AIM’s proposal to deposit non-approved waste materials from outside sources constituted a dramatic change to the nature and source of waste and an expansion of the landfill area. Based on Sartell’s objections to the permit renewal application, the MPCA released a public notice of intent to deny AIM’s permit application.

AIM then initiated a declaratory-judgment action against Sartell seeking a declaration that AIM was entitled to deposit waste generated from operations other than the paper mill into the landfill. Following cross-motions for summary judgment, the district court issued an order granting in part and denying in part AIM’s motion, and granting in part and denying in part Sartell’s motion. The district court found that the "use of the landfill is limited to waste generated by the paper mill operation," and that "the disposal of other wastes and wastes from other generators is an unpermitted expansion of the use." The district court further concluded that "a factual issue exists as to abandonment or discontinuance" of the landfill. During a status conference, the district court indicated that the landfill exclusions were intended to exclude any waste from sources other than the paper mill. Because the paper mill had been demolished and AIM had no current plans to construct a paper mill at the site of the demolished paper mill, there were no genuine issues of material fact. In an effort to avoid "the unnecessary time and expenses of a trial," the parties stipulated to the entry of final judgment against AIM. This appeal follows.

ISSUE

Is a landowner’s ability to continue a prior nonconforming use limited to the uses allowed under the terms of the land-use permit in effect at the time of the land-use-permit transfer?

ANALYSIS

Summary judgment is appropriate if the record reflects "no genuine issue as to any material fact" and the moving party "is entitled to judgment as a matter of law." Minn. R. Civ. P. 56.01. On appeal, "[w]e review a district court’s decision to grant summary judgment de novo to determine whether any genuine issue of material fact exists and whether the district court correctly applied the law." Citizens State Bank Norwood Young Am. v. Brown , 849 N.W.2d 55, 61 (Minn. 2...