Fort Gratiot Charter Tp. v. Kettlewell
| Decision Date | 08 July 1986 |
| Docket Number | 79102,Docket Nos. 78934 |
| Parties | FORT GRATIOT CHARTER TOWNSHIP, a municipal corporation, Plaintiff-Appellee, Cross-Appellant, v. William KETTLEWELL, Bill Kettlewell Excavating, Inc. and Eastern Michigan Development Co., Defendants-Appellants, Cross-Appellees, and The Disposal Company, a Michigan general partnership, Intervening-Defendant-Appellant, Cross-Appellee, and South Macomb Disposal Authority, a Michigan corporation, Defendant. 150 Mich.App. 648, 389 N.W.2d 468 |
| Court | Court of Appeal of Michigan — District of US |
[150 MICHAPP 650] Zick, Currier & Swegles, P.C. by Kenneth D. Zick, Marysville, and Patterson, Patterson, Whitfield, Manikoff, Ternan & White by Lawrence R. Ternan, Bloomfield Hills, for plaintiff.
Bush, Luce, Henderson, Bankson & Heyboer by David R. Heyboer, Port Huron, for defendants Kettlewell, Bill Kettlewell Excavating, Inc., and Eastern Michigan Development Co.
Kiefer, Allen, Cavanagh & Toohey by Robert E. Toohey, Bloomfield Hills, for The Disposal Co.
[150 MICHAPP 651] Before HOLBROOK, Jr., P.J., and R.B. BURNS and K.B. GLASER, * JJ.
This is an injunctive action to prevent defendants from disposing of solid waste generated in Macomb County at a sanitary landfill located in St. Clair County and owned by defendants William Kettlewell, Bill Kettlewell Excavating Company, Inc., and Eastern Michigan Development Company (hereinafter collectively referred to as Kettlewell). A permanent injunction was issued prohibiting solid waste originating in Macomb County from being put in Kettlewell's St. Clair County landfill until the amendment of the two counties' solid waste management plans. In Docket No. 78934, Kettlewell and intervening defendant, The Disposal Company, appeal as of right from that portion of the order enjoining the deposit of solid waste from Macomb County. In Docket No. 79102, plaintiff, The Charter Township of Fort Gratiot (Township) appeals as of right from that portion of the injunction which modifies a previously entered consent judgment. The trial court held that the Township's ordinance regulating the landfill is preempted by the Solid Waste Management Act, M.C.L. Sec. 299.401 et seq.; M.S.A. Sec. 13.29(1) et seq. (Act).
Kettlewell has been operating a landfill since the sixties. In 1979 the Township instituted an injunctive action to limit disposal into the landfill to only demolition materials. The trial court felt that the Township's having previously allowed the disposal of other materials estopped them from trying to prevent any further disposal of the same materials. Both parties appealed and while the appeal was pending the parties settled and entered into a consent judgment. The terms allowed Kettlewell to deposit nonhazardous materials allowed [150 MICHAPP 652] under the Act, required Kettlewell to comply with the Act and the Township ordinances, and left the court with continuing jurisdiction.
In June 1983 The Disposal Company began negotiating with Kettlewell and the South Macomb Disposal Authority (Authority) for the sale of the site. The Township filed a motion to prevent Kettlewell from violating the consent judgment. What Kettlewell would have allegedly violated would have been a DNR rule promulgated pursuant to the Act, 1982 AACS R 299.4711(e)(iii)(C), which provides:
Apparently the Kettlewell landfill was only mentioned in one county's plan. The court held that requiring both counties to amend their plans to provide for Macomb County waste in St. Clair County landfills was acceptable. Furthermore, the trial judge held that the Act preempted any local ordinances and modified the consent judgment.
We first must determine if the trial court erred in ruling that defendants are prohibited from disposing of Macomb County solid waste at the St. Clair County Kettlewell landfill. After a careful review we find no error. We do not find the requirement that both counties' plans mention the landfill to be in error or unreasonable. M.C.L. Sec. 299.430; M.S.A. Sec. 13.29(30) provides for the DNR to [150 MICHAPP 653] promulgate rules for the development and form of solid waste management plans. 1982 AACS R 299.4711(e)(iii)(C) provides that a site located in one county but serving another shall be identified in both counties' plans. The counties' plans may be amended to comply with the rules, which would resolve this issue. Defendants' contention that the plan would have to specifically prohibit this is without merit. County plans state what is permitted in the affirmative rather than including an exhaustive statement of what is prohibited. Independence Twp. v. Shibowski, 136 Mich.App. 178, 355 N.W.2d 903 (1984), lv. den. 422 Mich. 853 (1985).
Defendants also argue that the prohibition against depositing Macomb County solid waste in St. Clair County was unconstitutional. The test to determine if this legislation comports with due process is whether or not the legislation bears a reasonable relationship to a permissible legislative objective. Shavers v. Attorney General, 402 Mich. 554, 267 N.W.2d 72 (1978); cert. den. 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979); after remand 412 Mich. 1105, 315 N.W.2d 130 (1982). The challenged legislation is afforded a presumption of constitutionality. We must determine if there is a rational basis for the legislation and if the legislation bears a reasonable relation to the objective. Our review reveals that the legislative objective was to foster comprehensive planning for the disposal of said waste at the local level and to integrate state licensing with those plans so that the disposal of waste within the planning area would be compatible with the local plan. Additionally, enactment of the statutory planning and licensing scheme reasonably relates to the purpose of correcting past planning and licensing inadequacies. By placing primary planning at the county level, the scheme provides for reasoned planning for disposal sites based in part on the county's projected[150 MICHAPP 654] capacities and waste generation...
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...it is therefore valid under subsection 11538(8). Defendants contend that this Court's opinions in Fort Gratiot Charter Twp. v. Kettlewell, 150 Mich.App. 648, 389 N.W.2d 468 (1986), Weber v. Twp. of Orion Bldg. Inspector, 149 Mich.App. 660, 386 N.W.2d 635 (1986), and Southeastern Oakland Co ......
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