Posted by: Patricia Salkin | November 10, 2014

ME Supreme Court Holds Agriculture Protection Act Did Not Preempt Town’s Solid Waste Facilities Ordinance

Dubois Livestock, Inc., appealed from a judgment of the Superior Court affirming the decision of the Town of Arundel’s Zoning Board of Appeals (“ZBA”), which upheld a notice of violation that the Town’s code enforcement officer issued to Dubois for failure to comply with its conditional use permit. Dubois Livestock composts horse and cow manure, horse and cow bedding, and fish waste, none of which are generated on-site. Dubois’s original 1999 solid waste order from the Maine Department of Environmental Protection (DEP) allowed it to receive 1,733 tons of fish waste and 3,467 tons of horse manure annually. In 2012, the DEP order was amended to allow Dubois to receive no more than 29,000 tons of total material annually. Dubois argued that the Town did not have the authority to regulate Dubois’s operation because section 8.10.B.1 of the Town of Arundel Land Use Ordinance (2013) was preempted by state law: the Maine Agriculture Protection Act (Agriculture Protection Act), and the Maine Hazardous Waste, Septage and Solid Waste Management Act (Solid Waste Act).

The court began its analysis by first reiterating that local ordinances are presumptively valid, and an ordinance will be invalidated only when the Legislature has expressly prohibited local regulation, or when the Legislature has intended to occupy the field and the municipal legislation would frustrate the purpose of a state law. The court then looked at the scope of the Agriculture Protection Act, which indicated a purpose to support the viability of agriculture in Maine by ensuring that farms employing best management practices are not deemed to be public or private nuisances or to be in violation of local law if they are in compliance with state and federal law. Under this definition, the court found that Dubois was not a “farm” for purposes of the Agriculture Protection Act since it did not produce “agricultural products.” Furthermore, because the Agriculture Protection Act explicitly stated that it “does not affect municipal authority to enact ordinances” the Agriculture Protection Act did not preempt the Ordinance, express a clear intent to occupy the field, or frustrate the purpose of the Act. As to the Solid Waste Act, because the Ordinance defined “solid waste facility” and solid waste “processing facility,” and the terms incorporated therein, nearly identically to, or in some cases less stringently than, the definitions in the Act and rules promulgated under the Act, the standards in the Ordinance were found not to be stricter than those in the Act. Therefore, the court again found that the Ordinance’s provisions did not frustrate the purpose of the Act, and affirmed the Town’s enforcement of the Ordinance.

Dubois Livestock v Town of Arundel, 2014 WL 5573301 (ME 11/4/2014)

The opinion can be accessed at:

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