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County used faulty logic to deny Weber permit, court rules


June 01, 2005 - The County Council used faulty reasoning to deny Fred Weber Inc.'s request for a trash-transfer station in Oak-ville, according to the Eastern District of the Missouri Court of Appeals.

During Weber's petition for the station, the County Council instituted an ordinance prohibiting trash-transfer stations within 1,000 feet of churches, residences, schools, child-care centers, nursery schools or nursing homes.

Weber's proposed site for the transfer station on Baumgartner Road is within 1,000 feet of Canaan Baptist Church, 5409 New Baumgartner Road.

But the Eastern District Missouri Court of Appeals last week ruled the ordinance invalid because the county did not have a public hearing or receive a recommendation from the county Planning Com-mission before amending its zoning ordinances.

"I still think I was right in what I did and I am going to do it again," said County Council Chairman John Campisi, R-south county, who proposed the ordinance.

"We're still going to go with a 1,000-foot setback. We may even go bigger, longer, maybe 1,100 (feet)," Campisi told the Call, referring to plans to reintroduce a similar proposal that would take the court's ruling into account.

Weber attorneys Gary Feder of Husch & Eppenberger and Jeffrey Hunt of Gallop, Johnson & Neuman were unavailable for comment before press time. Weber Chief Executive Officer Thomas Dunne Sr. also was unavailable.

Assistant County Counselor David Arthur, who has handled the case, refused to talk to the Call.

Weber filed suit after the County Council rejected its request for a permit to construct a trash-transfer station at the Baum-gartner industrial site in Oakville. Area residents had actively opposed Weber's request, and Campisi backed them up.

The Circuit Court upheld Weber's argument that the ordinance was invalid, so the county appealed with no success.

"It is undisputed that the county enacted this ordinance without following its own procedures for amending its zoning regulations," the appellate opinion states.

The county, however, contends the measure addresses a matter of public health, well-being and safety, not merely land-usage law; therefore, the ordinance could not have been relegated as just a zoning ordinance.

The courts acknowledged the claim that laws may in fact affect facility location without actually being a "zoning ordinance," but tossed that logic in this case.

The appellate court ruled that public health was not the motivating factor be-hind the ordinance; public angst over Web-er's proposed transfer stations was the mo-tivator.

"(The ordinance) places no restrictions on the operations of those facilities or on the manner in which solid waste should be handled, processed or stored," the opinion states. "Although the ordinance was codified under the county's Waste Manage-ment Code, which sets forth detailed re-quirements pertaining to the licensing of solid-waste processing facilities, the ordinance itself simply limits the permissible locations where those facilities may be placed.

"The only conceivable manner in which the ordinance can be said to regulate the environmental impact of these facilities is by requiring a buffer zone between them and the enumerated residential structures," the opinion continued. "But if there are specific health or safety concerns that will be alleviated by requiring these facilities to be 1,000 feet away from those structures, then the ordinance does not explicitly state those concerns and the county has failed to adequately explain them ...

"There may be inherent health concerns relating to the proposed transfer station because, as the county asserts, it would accept 'a wide variety of filth.' But the county does not explain how those concerns are inadequately addressed by pre-existing substantive regulations, and we are not convinced that the primary purpose of the ordinance's 1,000-foot setback was to protect the public health and welfare.

"Instead, it appears as though the ordinance primarily attempts to minimize or avoid potential 'not in my back-yard' complaints from nearby residents. Under these circumstances, it appears that the primary purpose of the ordinance is to restrict where solid waste processing facilities may be located in an effort to promote the uniform development of real estate, not to protect the health, safety and welfare of the citizens of St. Louis County.

"Additionally, the ordinance has the effect of precluding the operation of a transfer station at FWD South's property, where that use had been permitted before the county enacted the ordinance. By ex-plicitly disallowing this previously permitted land use in the affected areas, the ordinance has the effect of amending the county's zoning rules."

Campisi disagrees with the court's ruling, but said he would introduce a similar proposal and neither a public hearing or a Planning Commission recommendation would stop him from getting something on the books to block Weber's transfer station.

"I thought I was taking care of the health issue by taking those facilities away from the public," he said.

As for the court's claim that the county adopted a law to "minimize or avoid po-tential 'not in my back-yard' complaints," Campisi said that's his job.

"I thought that's what we do," he said. "We're supposed to be legislating for that type of reason."

Other counties have adopted similar ordinances, the opinion states, but those regulated sanitary conditions and didn't just prohibit junkyards and transfer stations in certain districts. These ordinances did not renege on proper land uses either, as St. Louis County's ordinance has.

Campisi plans to press forward soon with appropriate legislation that would prevent Weber from constructing a trash-transfer station in Oakville, even if he must go to the Planning Commission for a recommendation or have a public hearing.

"Nothing in this opinion prevents the county from denying the application on some other basis. Nor is the county prohibited from taking the proper steps in the future to enact ordinances that regulate the location of solid waste management facilities, which is a power it would have even if it were not a charter county," the opinion stated. "Indeed, if the ordinance had been enacted simultaneously with other provisions that directly regulated solid waste processing facilities, so that, as a whole, the enactment had regulated both the location of those facilities and also imposed substantive restriction on the manner in which they were operated, then our conclusion may have been different."

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