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STATE OF MICHIGAN COURT OF APPEALS

RONDIGO, LLC., Plaintiff-Appellant, v TOWNSHIP OF CASCO, Defendant-Appellee.

UNPUBLISHED December 16, 2010

No. 292611 St. Clair Circuit Court LC No. 08-002291-CZ

Before: O'CONNELL, P.J., and BANDSTRA and MURRAY, JJ. PER CURIAM. Plaintiff appeals as of right the trial court order denying its request for a declaratory judgment that MCL 324.11521 preempts those portions of defendant's zoning ordinance regulating composting operations.1 We affirm. In 2003, plaintiff purchased a 42-acre parcel of property, zoned industrial and located within defendant township, intending to use it for commercial composting operations. In December 2004, defendant enacted new zoning ordinance provisions regulating commercial composting operations within the Township. Defendant's zoning ordinance, since amended, allows for yard waste composting activities in industrial zones, but only under a special use permit subject to a series of locally-imposed requirements. In 2007, the Michigan Legislature amended part 115 (Solid Waste Management) of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.11521, effective March 26, 2008, to add regulations pertaining to composting operations. Plaintiff asserts that it has taken the necessary steps to become a "registered composting facility" under MCL 324.11521, and that, consequently, it is entitled to commence composting activities on the property without further approvals or restrictions imposed by defendant. After defendant declined to approve plaintiff's site plans for a composting facility on the property, plaintiff filed suit seeking a declaratory judgment that MCL 324.11521 preempts those portions of defendant's zoning ordinance which attempt to

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Plaintiff is not challenging defendant's entire zoning code, but only those parts which are specific to composting operations. Plaintiff agrees that it must follow those local regulations which apply to more than just composting facilities.

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regulate yard waste composting. The trial court determined that the ordinance is not preempted by the state statute and denied plaintiff's requested relief. On appeal, plaintiff argues that the trial court erred in holding that the portions of plaintiff's zoning ordinance addressing composting are not preempted by MCL 324.11521. We disagree. Whether a state statute preempts a local ordinance is a question of statutory interpretation and, therefore, a question of law that this Court reviews de novo. Mich Coalition For Responsible Gun Owners v City of Ferndale, 256 Mich App 401, 405; 662 NW2d 864 (2003). A decision to grant or deny a declaratory judgment is likewise reviewed de novo, but the trial court's factual findings will not be overturned unless clearly erroneous. Auto-Owners Ins Co v Harvey, 219 Mich App 466, 459; 566 NW2d 517 (1996). State law preempts a municipal ordinance where the ordinance directly conflicts with a state statute or where the statute completely occupies the field that the ordinance attempts to regulate. Rental Prop Owners Ass'n of Kent Co v Grand Rapids, 455 Mich 246, 257; 566 NW2d 514 (1997). With regard to a direct conflict, as this Court recently explained in USA Cash #1, Inc v City of Saginaw, 285 Mich App 262, 267-268; 776 NW2d 346 (2009): "For purposes of preemption, a direct conflict exists between a local regulation and a state statute when the local regulation permits what the statute prohibits or prohibits what the statute permits." McNeil [v Charlevoix Co, 275 Mich App 686, 697; 741 NW2d 27 (2007)], citing People v Llewellyn, 401 Mich 314, 322 n. 4; 257 NW2d 902 (1977). It is well established, however, that a local ordinance that regulates in an area where a state statute also regulates, with mere differences in detail, is not rendered invalid due to conflict. Walsh v River Rouge, 385 Mich 623, 635-636; 189 NW2d 318 (1971). "As a general rule, additional regulation to that of a State law does not constitute a conflict therewith." Id. at 636 (quotation marks and citation omitted). Where no direct conflict exists, both laws stand. Id. And, to determine whether a statute completely occupies a field of regulation, courts are to consider the following four factors: First, where the state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted. Second, pre-emption of a field of regulation may be implied upon an examination of legislative history. Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of pre-emption.

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Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest. [Rental Prop Owners, 455 Mich at 257, quoting Llewellyn, 401 Mich at 323-324.] The state statute at issue here, MCL 324.11521, regulates composting operations, such as that sought to be operated by plaintiff. It provides in pertinent part: (1) Yard clippings shall be managed by 1 of the following means: *** (e) Composted at [a] site that qualifies as a registered composting facility under subsection (4). *** (4) A site qualifies as a registered composting facility if all of the following requirements are met: (a) The owner or operator of the site registers as a composting facility with the department and reports to the department within 30 days after the end of each state fiscal year the amount of yard clippings and other compostable material composted in the previous state fiscal year. The registration and reporting shall be done on forms provided by the department. The registration shall be accompanied by a fee of $600.00. The registration is for a term of 3 years. Registration fees collected under this subdivision shall be forwarded to the state treasurer for deposit in the solid waste staff account of the solid waste management fund established in section 11550. (b) The site is operated in compliance with the following location restrictions: (i) If the site is in operation on December 1, 2007, the management or storage of yard clippings, compost, and residuals does not expand from its location on that date to an area that is within the following distances from any of the following features: (A) 50 feet from a property line. (B) 200 feet from a residence. (C) 100 feet from a body of surface water, including a lake, stream, or wetland. (ii) If the site begins operation after December 1, 2007, the management or storage of yard clippings, compost, and residuals occurs in an area that is not in

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the 100-year floodplain and is at least the following distances from each of the following features: (A) 50 feet from a property line. (B) 200 feet from a residence. (C) 100 feet from a body of surface water, including a lake, stream, or wetland. (D) 2,000 feet from a type I or type IIA water supply well. (E) 800 feet from a type IIB or type III water supply well. (F) 500 feet from a church or other house of worship, hospital, nursing home, licensed day care center, or school, other than a home school. (G) 4 feet above groundwater. (c) Composting and management of the site occurs in a manner that meets all of the following requirements: (i) Does not violate this act or create a facility as defined in section 20101. (ii) Unless approved by the department, does not result in more than 5,000 cubic yards of yard clippings and other compostable material, compost, and residuals present on any acre of property at the site. (iii) Does not result in an accumulation of yard clippings for a period of over 3 years unless the site has the capacity to compost the yard clippings and the owner or operator of the site can demonstrate, beginning in the third year of operation and each year thereafter, unless a longer time is approved by the director, that the amount of yard clippings and compost that is transferred off-site in a calendar year is not less than 75% by weight or volume, accounting for natural volume reduction, of the amount of yard clippings and compost that was on-site at the beginning of the calendar year. (iv) Results in finished compost with not more than 1%, by weight, of foreign matter that will remain on a 4 millimeter screen. (v) If yard clippings are collected in bags other than paper bags, debags the yard clippings by the end of each business day. (vi) Prevents the pooling of water by maintaining proper slopes and grades. (vii) Properly manages storm water runoff. (viii) Does not attract or harbor rodents or other vectors. -4-

(d) The owner or operator maintains, and makes available to the department, all of the following records: (i) Records identifying the volume of yard clippings and other compostable material accepted by the facility and the volume of yard clippings and other compostable material and of compost transferred off-site each month. (ii) Records demonstrating that the composting operation is being performed in a manner that prevents nuisances and minimizes anaerobic conditions. Unless other records are approved by the department, these records shall include records of carbon-to-nitrogen ratios, the amount of leaves and the amount of grass in tons or cubic yards, temperature readings, moisture content readings, and lab analysis of finished products. Defendant's ordinance addresses concerns similar to those addressed by the statute regarding the location and manner of composting, and the maintenance of appropriate site drainage. However, the ordinance also contains a number of additional requirements not present in the statute. For example, the ordinance requires that a compost facility have sufficient restrooms to accommodate facility staff, have maintenance structures for equipment storage, and have an emergency plan for responding to fires. It also requires that an applicant for a special use permit to operate a compost facility provide defendant with a study on the traffic impact of the facility and a plan for mitigating the impact of truck traffic, and that the facility, once operating, conduct semiannual soil tests, keep noise and vibrations below certain levels, and manage the decomposition process so as to prevent obnoxious odors. Additionally, the ordinance requires inspections by Township officials "several times per year based on a schedule established by resolution of the Township Board," and, it requires that the operator "submit a bond, in an amount established by resolution of the Township Board, to guarantee restoration of the site in the event of abandonment and to guarantee cleanup of chemical or other hazardous spills." Plaintiff first asserts that MCL 324.11521 preempts defendant's composting ordinance because the ordinance is in direct conflict with the state statutory scheme. As previously noted, an ordinance directly conflicts with a statute only if the ordinance permits what the statute prohibits, or prohibits what the statute permits. Rental Prop Owners, 455 Mich at 262, citing 56 Am Jur 2d, Municipal Corporations,

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