Waterford Processing & Reclaiming Co. v. Township of Waterford , 25 Mich. App. 507 ( 1970 )

25 Mich. App. 507 (1970) 181 N.W.2d 675

WATERFORD PROCESSING AND RECLAIMING CO.
v.
TOWNSHIP OF WATERFORD

Docket No. 8,256.

Michigan Court of Appeals.

Decided July 29, 1970. Leave to appeal denied October 20, 1970.

Hartman, Beier, Howlett, McConnell & Googasian (J. Gerald McLean, of counsel), for plaintiff.

Booth, Patterson, Hays & Karlstrom, for defendants.

Before: LESINSKI, C.J., and DANHOF and SNOW,^[*] JJ.

Leave to appeal denied October 20, 1970. 384 Mich 768.

LESINSKI, C.J.

The charter township of Waterford enacted the following ordinance as part of its 1963 general zoning ordinance:

"Filling of land. The filling of land with rubbish, garbage or any other waste material by a person, firm, corporation, partnership, or other organization is not permitted in the township unless located in an AG-1 District and without first submitting an application to the board and securing a permit from the building inspector.

"a. Application. Before approving any permit the board shall hold a public hearing concerning the proposed use, and further, an application for a permit shall have been requested in writing to the township clerk containing the following information:

* * *

"c. Permits. After considering all the available facts and after public hearing, and if it shall determine that the proposed operations will not be injurious to the general public health, safety and welfare of the township and its citizens, the board shall authorize the building inspector to issue a permit conditioned on compliance of the permit holder with all the requirements of this section."

Subsequently, the state legislature passed PA 1965, No 87 (MCLA § 325.291 et seq. [Stat Ann 1969 Rev § 14.435(1) et seq.]), the garbage and refuse disposal act, which states in part:

"Sec. 2. No person shall dispose of any refuse at any place except a disposal area licensed as provided in this act. Nothing in this act nor any act of the commissioner's shall usurp the legal right of a local governing body from developing and enforcing local ordinances, codes, or rules and regulations on solid waste disposal equal to or more stringent than the provisions of this act, nor will this act relieve the applicant for license to operate a disposal area from obtaining a license from a local governing body when required or relieve the person owning or operating a disposal area from responsibility for securing proper zoning permits or complying with all applicable local ordinances, codes, or rules and regulations not in conflict with this act."

Waterford Processing and Reclaiming Co., a Michigan co-partnership (hereinafter referred to as Processing), sought and received a state license permitting operation of a sanitary land-fill on a certain site in the AG-1 district of Waterford Township. The license was granted after a determination by the state Health Commissioner that "unlawful pollution will not be created and injury to ground and surface waters will be avoided," through careful control of Processing's operation. Certain conditions designed to protect the surrounding area from contamination and pollution were attached to the license.

As provided by the statute, Processing next applied to the township for a license. After protracted public hearings, Processing's application was denied, apparently because the planning commission believed there was the possibility of pollution of nearby Maceday Lake. Following circuit court reversal of the board's finding, the township appeals.

Among other questions raised is the claim, by Processing, that the quoted ordinance section is void because it is in direct conflict with the state statute.

The rule governing resolution of this issue has been repeatedly stated:

"It is the rule that, in the absence of specific statutory or charter power in the municipality, the provisions of an ordinance which contravene a state law are void. People v. McGraw [1915], 184 Mich 233; 43 CJ p 215. What the legislature permits, the city cannot suppress, without express authority therefor. State v. Brittain [1883], 89 NC 574. The rule as to conflict is thus fairly stated:

"``The question as to whether or not a municipal ordinance or regulation is in conflict with the general law is sometimes difficult of solution, and cannot be determined by any fixed rule. Each particular case must be determined as it arises. Broadly speaking, the question whether a conflict exists depends upon whether the state has occupied the whole field of prohibitory legislation with respect to the subject. If such is the case, it is held that a conflict exists. In order that there be a conflict between a state enactment and a municipal regulation both must contain either express or implied conditions which are inconsistent and irreconcilable with each other. Mere differences in detail do not render them conflicting. If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand. * * * As a general rule, additional regulation to that of a state law does not constitute a conflict therewith.' 43 CJ p 218." National Amusement Co. v. Johnson (1935), 270 Mich 613, 616.

In the instant case, the legislature has authorized the state health commissioner to determine the suitability, for land-fill purposes, of a certain piece of property and to license the operators thereof. MCLA § 325.294 (Stat Ann 1969 Rev § 14.435[4]). Such a determination is presumably made after careful consideration of the waste disposal needs of the citizens of both the state and the local area and the possible dangers of water contamination and pollution. See 1954 AACS 45, p 8ff, R 325.1101ff. The interests of the state in this area are clearly identical to the interests of the local citizenry.^[1] Compare Detroit Edison Company v. City of Wixom (1969), 382 Mich 673, 682.

Once the commissioner has approved a certain site and imposed operating conditions, the local governing body may impose any additional reasonable regulations designed to eliminate any forseeable health hazard. However, these local regulations may not exclude what the state has permitted. Builders Association v. City of Detroit (1940), 295 Mich 272. Since the operation of the Waterford Township zoning ordinance has an exclusionary effect in this case, that portion of the ordinance permitting refusal of a local license to a state licensee is void as applied.

Resolution of the above issue obviates discussion of the other questions raised. The decision of the circuit court is affirmed. No costs, a public question being involved.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] See, for example, AACS 1964-1965, R 325.1103:

"Water pollution and nuisance control.

"(4) Sanitary landfill operations shall be so designed and operated that conditions of unlawful pollution will not be created and injury to ground and surface waters avoided which might interfere with legitimate water uses. Water-filled areas not directly connected to natural lakes, rivers or streams may be filled with specific inert material not detrimental to legitimate water uses and which will not create a nuisance or hazard to health. Special approval of the inert material to be used in this manner is required in writing from the health department having jurisdiction. Such approval shall be filed with the director. Inert material shall not include residue from refuse incinerators, unless evidence, satisfactory to the director, is submitted by the licensee substantiating that such residue will not create a nuisance or hazard to health."