DeRosso Landfill Co. Inc. v. City of Oak Creek

Decision Date13 May 1996
Docket NumberNo. 94-0440,94-0440
Citation547 N.W.2d 770,200 Wis.2d 642
PartiesDeROSSO LANDFILL COMPANY, INC. and Gordon DeRosso, Plaintiffs-Respondents-Petitioners, v. CITY OF OAK CREEK, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiffs-respondents-petitioners there were briefs by Hugh R. Braun, Beth A. Thorson and Godfrey, Braun & Hayes, Milwaukee and oral argument by Hugh R. Braun.

For the defendant-appellant there was a brief and oral argument by Lawrence J. Haskin, City Attorney, Oak Creek.


This is a review of a published decision of the court of appeals, DeRosso Landfill Co. v. City of Oak Creek, 191 Wis.2d 46, 528 N.W.2d 468 (Ct.App.1995), reversing an order of the Circuit Court for Milwaukee County, George A. Burns, Jr., judge. The circuit court ordered a permanent injunction restraining the City of Oak Creek (the City) from interfering with DeRosso Landfill Company, Inc. and Gordon DeRosso (the plaintiffs) in their implementation of a plan, approved by the Department of Natural Resources (DNR), to fill with clean fill a 300,000-cubic-yard hole located on ten acres of land owned by Gordon DeRosso. 1 We reverse the decision of the court of appeals and remand the cause to the circuit court with directions to reinstate the permanent injunction.

The issue presented for our review is whether a solid waste facility exempt from regulation pursuant to Wis.Stat. § 144.44(7)(g) (1993-94) 2 must nevertheless comply with a pre-existing municipal ordinance prohibiting that facility from being opened. 3

The circuit court concluded that in enacting Wis.Admin.Code § NR 500.08(2)(a) pursuant to Wis.Stat. § 144.44(7)(g), the DNR has exercised authority vested in it by the legislature and has withdrawn the City's authority to regulate the proposed clean fill facility. The court of appeals reversed, holding that the statutory exemption merely restores the City's pre-existing authority to regulate the use of land within its borders.

We agree with the circuit court's analysis of the statutes. For the reasons explained below we conclude that the City's resolution and ordinance must yield before countervailing state legislation.


For purposes of this review, the facts are not in dispute. In June 1989 the DNR ordered the plaintiffs to close and cap with two feet of foundry clay a 40-acre landfill in Oak Creek that had reached capacity. In its closure order, the DNR also required the plaintiffs to submit a plan for the "abandonment" (restoration) of the "borrow source" (the land from which the clay would be excavated).

The plaintiffs' borrow source site is a ten-acre parcel of land owned by Gordon DeRosso, zoned for industrial use and located east of Pennsylvania Avenue and immediately across the street from the landfill between Ryan Road and State Highway 100 in Oak Creek. Excavations of clay from this site created a 300,000-cubic-yard hole which has filled with water, creating an artificial pond. In complying with the DNR order to restore this site, the plaintiffs commenced negotiations with the DNR, which in November 1990 culminated in the submission of a proposal to fill the site with clean fill.

The City, however, objected. Although the City had initially passed a resolution approving the use of the site as a clean fill repository and negotiated an agreement allowing the site to be filled with clean fill, the City was concerned that if the DNR alone regulated the filling of the site, the monitoring of materials placed there would be insufficient. Therefore, in June 1992 the City passed a resolution stating that because "the City of Oak Creek has environmental concerns regarding the proposed method of abandoning the borrow site," the site could not be filled with clean fill.

At the same time, however, the DNR indicated that it was moving toward an approval of the plaintiffs' proposal. In a letter sent to the City Attorney in July 1992, a DNR attorney stated that the plaintiffs' proposal, if properly implemented, would comply with DNR environmental regulations. 4 Although the DNR and the plaintiffs continued to negotiate over implementation matters such as how the site would be dewatered without adversely impacting the surrounding region, in June 1993 the DNR waste management engineer assigned to the plaintiffs' site stated in an affidavit that "[t]he DNR expects to issue final approval in the near future." The DNR approved the plaintiffs' proposal on October 6, 1993. 5

In the interim, the plaintiffs had brought suit in circuit court seeking a declaratory judgment and a permanent injunction restraining the City from interfering with the proposed plan to fill the site with clean fill. In December 1993, following a hearing on the motion, the circuit court issued a memorandum decision stating that because Wis.Stat. § 144.44(7)(g) authorized the DNR to exempt certain facilities from applying for local approvals, it stood to reason that those facilities need not comply with local approvals either. "By providing that certain facilities may be exempted from local approval," stated the circuit court, "the legislature has clearly and expressly withdrawn municipal power to act as to exempt facilities" because "[a] city cannot prohibit what the state allows when the legislature has withdrawn municipal authority to act." Because the DNR had exempted clean fill facilities from applying for local approvals, the circuit court held that "the City's resolution and ordinance are invalid as to the DeRossos' plan to fill the site with clean fill." Consequently, the circuit court granted the plaintiffs' motion for an injunction.

The City appealed, and the court of appeals reversed the order of the circuit court, concluding that exemption from the regulatory scheme under Wis.Stat. § 144.44(7)(g) "merely leaves the parties--the operators and the localities--in the same position with respect to the exempt facilities as they would have been if that scheme did not exist." DeRosso, 191 Wis.2d at 59-60, 528 N.W.2d 468. "Rather than withdraw Oak Creek's power to regulate," the court of appeals reasoned, "the exemption merely restores Oak Creek's pre-existing authority to regulate the use of land within its borders." Id. at 60-61, 528 N.W.2d 468. Because it determined that the City's resolution and ordinance did not conflict with the legislature's statutory scheme for regulating waste facilities, the court of appeals concluded that the City's prohibition of the plaintiffs' facility passed muster under the preemption test set forth in Anchor Savings & Loan Ass'n v. Madison EOC, 120 Wis.2d 391, 395-97, 355 N.W.2d 234 (1984). DeRosso, 191 Wis.2d at 64-65, 528 N.W.2d 468. It therefore reversed the circuit court.


We first examine the powers of a local unit of government to regulate an issue of statewide concern. The parties, the circuit court, the court of appeals and this court agree that the plaintiffs' proposed clean fill facility would be a solid waste facility and that the legislature has explicitly provided that regulation of solid waste facilities is a matter of statewide concern. 6

Labelling a matter one of statewide concern does not, however, automatically void local regulation. The court has frequently stated that a municipality may pass ordinances which, while addressed to local issues, concomitantly regulate matters of statewide concern. Anchor, 120 Wis.2d at 395-96, 355 N.W.2d 234; Wisconsin Envtl. Decade, Inc. v. DNR, 85 Wis.2d 518, 532-33, 271 N.W.2d 69 (1978); see also Thomas P. Solheim, Conflicts Between State Statute and Local Ordinance in Wisconsin, 1975 Wis.L.Rev. 840, 847-48.

Nevertheless, a municipality's ability to regulate matters of statewide concern is limited. As the court stated six decades ago, "municipalities may enact ordinances in the same field and on the same subject covered by state legislation where such ordinances do not conflict with, but rather complement, the state legislation." Fox v. Racine, 225 Wis. 542, 546, 275 N.W. 513 (1937) (quoting Milwaukee v. Childs Co., 195 Wis. 148, 151, 217 N.W. 703 (1928)). Therefore, wrote the Fox court, where " 'the state has entered the field of regulation, municipalities may not make regulation inconsistent therewith' " because "a municipality cannot lawfully forbid what the legislature has expressly licensed, authorized or required, or authorize what the legislature has expressly forbidden." Fox, 225 Wis. at 545, 275 N.W. 513; (quoting Hack v. Mineral Point, 203 Wis. 215, 219, 221, 233 N.W. 82 (1930)). The principle announced in Fox "has been the rule in Wisconsin and still is" the rule when addressing the question of whether state legislation preempts a municipal ordinance. Anchor, 120 Wis.2d at 397, 355 N.W.2d 234; see also Wisconsin Ass'n of Food Dealers v. City of Madison, 97 Wis.2d 426, 433 n. 7, 293 N.W.2d 540 (1980).

Summarizing the court's preemption analysis, the Anchor court outlined four tests to determine when a state statute invalidates a local ordinance. A municipal ordinance is preempted if (1) the legislature has expressly withdrawn the power of municipalities to act; (2) it logically conflicts with state legislation; (3) it defeats the purpose of state legislation; 7 or (4) it violates the spirit of state legislation. 8 Should any one of these tests be met, the municipal ordinance is void.

The question of whether a statute preempts a municipal ordinance raises a question of law which we review independently, benefitting from the analyses of the circuit court and the court of appeals. In applying this state's analysis for determining the validity of a local regulation, we construe administrative rules in the same manner as statutes because administrative rules enacted pursuant to statutory authority have the force and effect of law. State ex rel. Staples v. DHSS, 115 Wis.2d 363, 367, 340 N.W.2d 194 (1983); Law Enforcement Stds. Bd. v. Lyndon Station, 101 Wis.2d...

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