St. Louis County will appeal a judge’s ruling throwing out an ordinance that served as one of the county’s reasons for denying a Fred Weber Inc. trash-transfer station application.
The county plans to appeal the decision as soon as possible, according to County Counselor Pat Redington.
Fred Weber filed a lawsuit against St. Louis County last fall, challenging the legality of a new regulation that prohibited the development of waste-processing facilities, including trash-transfer stations, within 1,000 feet of residences, churches, adult- and child-care centers and other such buildings.
County Councilman John Campisi, R-south county, authored the amendment to the county’s Waste Management Code, and it was unanimously adopted by the council last fall.
The Department of Health cited the 1,000-foot restriction last year as one of its reasons for denying Fred Weber’s application for a license to construct a trash-transfer station at Baumgartner and Old Baumgartner roads in Oakville.
Other reasons referenced in the department’s denial letter to Fred Weber stated that the trash-transfer station would have been hazardous to the public’s health because the station would have violated noise codes and the transfer station would have posed fire, odor, rodent and insect hazards.
However, Senior Judge Robert Campbell ruled May 17 in favor of Fred Weber, declaring the ordinance was “illegally enacted and is, therefore, invalid and unenforceable.”
Campbell also has ordered that the county be “restrained from enforcing the ordinance.”
Fred Weber contended in its suit against the county that the 1,000-foot restriction should have been treated as a zoning ordinance — meaning that before adoption the ordinance would have been subject to a public hearing and it would have been considered by the Planning Commission.
It would have taken much longer to approve the 1,000-foot restriction, according to Gary Feder of Husch & Eppenberger, an attorney representing Fred Weber.
“The very nature of it makes it a typical zoning ordinance,” Feder told the Call, noting that the ordinance deals with the distances particular uses can be located with respect to other uses. “What the county did is that they said this isn’t a zoning ordinance … it’s an amendment to the Waste Management Code because it deals with waste …
“Therefore they don’t have to go to the Planning Commission … Our lawsuit primarily says that it is a zoning ordinance … It should have been treated that way. But it wasn’t because it wasn’t. It’s illegal …,” Feder added.
Based on comments made two weeks ago by the Planning Commission, Feder said that if the proper measures had been taken by the county, the ordinance never would have been adopted.
During a May 10 Planning Commission meeting, Chairman Doug Morgan and Planner Mike Zeek both described the required 1,000-foot buffer zone as “ineffective” in terms of its ability to site trash-transfer stations.
“Frankly our feeling was that the 1,000-foot regulation was adopted specifically for the purpose to try to prevent Fred Weber from getting a permit for Baumgartner and Old Baumgartner … During the time it was being considered, there was no zoning regulation on trash-transfer stations and the only basis for stopping the project was a denial of license by the Department of Health,” Feder said. “… The only way this project would be stopped was to adopt a new ordinance … to stop the project from being built … It is our opinion that this is the sole reason the ordinance was adopted, and in a hurry, without the proper procedure.”
Redington told the Call that once the judge’s decision becomes final, the county will have 10 days to appeal it — and it will, she said.
“We are going to appeal it and defend it as a health regulation and not a zoning regulation,” Redington said.
Asked if the judge’s ruling would overturn any decisions made by the council involving the 1,000-foot regulation, she said, “No.”
“When the judgment is final, we can’t enforce it …,” Redington said of the ordinance.
“But that is not significant because zoning ordinances have been changed to regulate these matters more carefully. And in fact, in denying the appeal for the Baumgartner site, the county referred to the new zoning ordinances,” Redingon added.
She said the judge’s ruling would not overturn the county’s decision to deny Fred Weber a license at 4200 Baumgartner Road because “there were other reasons for denying the Baumgartner appeal.”
Council Chairman Skip Mange, R-Town and Country, agreed with Redington, noting that the health department cited about nine different reason for denying Fred Weber’s appeal.
“Even with one being thrown out by the court, there are still eight other valid reasons for denying the appeal,” Mange told the Call.
Campisi also told the Call, “We’re going to fight it … The county is going to fight that … It’s well worth it for health reasons, for constituent reasons.
“There’s a lot of reasons why we should go after re-establishing the 1,000-foot rule,” he said, also noting he believed Fred Weber is challenging the 1,000-foot rule only to get a trash-transfer station in south county.
Fred Weber believes last week’s ruling will give the company a chance to reverse the county’s ruling to deny its application for a trash-transfer station on Baumgartner and Old Baumgartner roads.
“We are in the process of filing a lawsuit challenging the decision relating to Baumgartner and Old Baumgartner,” Feder said. “This is certainly an issue we would be raising to the extent that the Department of Health and ultimately the county council relied on the 1,000-foot restriction as being a basis for denial for a license at that site …
“We thought even before this week’s decision the Department of Health’s position was weak. It behooves us to think their position is even weaker now …,” he added.
If the county appeals Campbell’s decision, Fred Weber will respond, Feder said, adding that he believes the judge is on “very solid ground” and that his opinion will be upheld in an appeal.
“It’s obvious we think the whole procedure was wrong, he said, “It’s obviously important to get this thing reversed.”