Richfield asks WI Supreme Court to stop quarry plan
Danah Zoulek bought 40 acres in the Village of Richfield with plans to fill in an old gravel pit and develop a horse farm. The village changed her zoning to prevent that, but she sued. Mike De Sisti and Chelsey Lewis / Milwaukee Journal Sentinel
RICHFIELD - From the edge of her yard, Danah Zoulek can look out over a 30-acre hole in the rest of her land, the scar left from a gravel mine operation in the 1960s and '70s.
She wants to reclaim the property on Scenic Road with clean fill from area construction projects so that in a few years her property could become a horse farm and the site of two three more homes.
But where she sees economic opportunity and environmental improvement, neighbors and local government see threats to their water and exurban calm. They've tried to block Zoulek's plan, which critics say is only about making money, and things have gotten ugly at Village Board meetings and on a local blog. Zoulek said she's been harassed, had her house egged and been told she should kill herself.
But the unflappable combat veteran has engaged the opposition on several fronts, even at the ballot box, where she has run — unsuccessfully — for a spot on the Village Board.
She also lost in court, at first. But recently, the District 2 Court of Appeals reversed a Washington County judge's ruling and said Zoulek can proceed with her project. Judge Brian Hagedorn, writing for a three-judge panel, found the state Department of Natural Resources has exclusive authority over permitting such "clean fill" operations precisely because the state's goal of quarry reclamation nearly always runs into a "not in my backyard" opposition on the local level.
Richfield has now asked the Wisconsin Supreme Court to hear the case, which it says is a "manifest error of law" that threatens local governments' "home rule" statewide.
Zoulek's attorney, Bruce McIlnay of Grafton, calls her case "a poster child for why" the state passed a law titled "non-metallic mining reclamation." Its stated purpose is to clean up sand and gravel quarries, grade their steep walls, restore vegetation that harbors area wildlife and abate attractive nuisances, all while increasing potential uses and tax revenues.
Zoulek, 37, is an Army veteran and mother of two who works as a portrait photographer. She keeps chickens, goats, ducks, dogs and a horse at her home on Scenic Road. She and her husband (they're now separated) formed Scenic Pit LLC in 2014. Soon after, they apprised village officials of their plan to operate a landfill for low-hazard, clean construction debris. They hoped the tipping fees from contractors would help pay for the property and the final restoration costs, like thousands of yards of topsoil.
The village then rezoned the property to a residential classification it said would prohibit such an operation. For Scenic Pit to go forward, the village would have to amend its comprehensive plan, rezone the property, provide a conditional use permit plus village permits for erosion control and storm water management.
Zoulek said she is confused because, for years, the village's comprehensive plan called for restoring the property, which was abandoned after gravel mining ended in 1977.She said the previous owners, who tried to sell for years, had various development proposals shot down by the village because they didn't include pit restoration.
Zoulek said she has asked the village repeatedly what it really wants to see on the property. "They will not tell me," she said.
She said the village now claims it likes the property just like it is, even though it could generate much more tax revenue after reclamation, a process that could take three to 10 years, depending on the demand among contractors.
She said there's lots of interest. "You'd be surprised how much surplus material is out there," from road and utility projects and home basement and other excavations. The delay of litigation has cost her about $150,000 in tipping fees from nearby projects she could have earned, she said.
In 2015, despite the village's rezoning, Scenic Pit purchased the 40 acres from the family that had owned it for generations and later sought construction permits from Richfield related to the landfill operation. They were denied but did get a storm water and erosion control permit from the DNR.
Scenic Pit then sought a court's declaration that it need not meet the village's other requirements because of the state law granting the DNR power over regulation of quarry reclamations. But the judge ruled for the village, saying that as long as local rules aren't "diametrically opposed" to the state's rules, it was OK to make Scenic Pit comply with both.
In the appellate ruling, Hagedorn found the Legislature had expressly withdrawn local controls over this kind of landfill. The next day, the Village Board met and authorized its lawyers to ask the Wisconsin Supreme Court to review the ruling.
In a news release, Village Administrator Jim Healy said even the Court of Appeals' reasoning should prevent Zoulek's plan. The ruling cited all the protections listed in the DNR regulation of clean fill sites as adequate safeguards to Richfield's concerns.
One of those says no such landfill should be operated within 1,200 feet of any water supply. Healy said there are 40 private wells that close to Scenic Pit.
Healy said the entire village — population 11,385 — is on wells and septic systems. Ground water is about 18 feet below the bottom of Zoulek's pit he said. One concern is that hazardous materials could find their way among "clean fill" and contaminate wells.
"The village's paramount concern has been, and continues to be, the shallow aquifer which lies directly beneath the ground's surface," the news release states.
Zoulek counters that the DNR supports quarry reclamation as a means to protect groundwater, by replacing the layers of filtering material removed by mining.
She thinks the real concerns are about noise, dust and truck traffic that would necessarily accompany the operation. That and the fact that neighbors have lost trespassing access to the pit for four-wheeling, hunting and other activities.
"They think it's their private park," she said.
Zoulek has been trying to get her own view of the plan out to residents over Facebook, where she has posted a video, documents, news stories and commentary. She often responds to critics on a local blog (where some residents also support her plan).
An opposition group, Scenic Group-Richfield Residents Against Dump, has its own website. The site lists no names of contacts, and the group's attorney, Alan Marcuvitz, did not return requests for comment.
The state Supreme Court has not yet decided whether or not to hear the case.