Traverse City Record-Eagle

February 23, 2013

Appeals court upholds township's septage law

By BRIAN McGILLIVARY bmcgillivary@record-eagle.com
Traverse City Record-Eagle

---- — TRAVERSE CITY — A state appellate court upheld East Bay Township’s septage control ordinance that requires treatment of all septic tank waste at the Grand Traverse County septage treatment plant.

The ruling ensures the financially troubled, $7.8 million facility that charges the highest per-gallon treatment rate in the state can continue to operate. Every township in the county, plus Elmwood Township in Leelanau County, has identical ordinances. Haulers could have trucked septage to lower-cost facilities if the court would have invalidated the ordinance.

“If they had overturned it you would have seen people hauling out of the area instead of to the plant, but they didn’t,” said Glen Lile, East Bay supervisor and a member of the county Board of Public Works, the agency that oversees the plant. “I’m happy it turned out the way it did, because you never know how something will turn out in a court hearing and it puts that issue to rest.”

The lawsuit began in 2011 when Gmoser’s Septic Service LLC of Antrim County pumped out a septic tank in East Bay Township, charged the homeowner the county’s 12 cents a gallon treatment charge, but didn’t take the waste to the county plant. The customer was Lile’s son.

The BPW fined Gosmer’s $100, plus the $120 fee and the company sued to overturn the ordinance. The Michigan Septic Tank Association joined the lawsuit and asked 13th Circuit Court Judge Philip Rodgers to overturn the ordinance because it goes beyond what’s called for under state law. The court ruled in favor of the county. Gmoser’s settled and agreed to pay the county $19,500 in fines and fees.

The Michigan Septic Tank Association appealed. The appellate court made quick work of the case and issued a unanimous, published opinion Feb. 19, one week after it heard oral arguments.

The court agreed that normally a township ordinance can’t preempt state regulation, but in this case state law specifically allows local ordinances that are stricter than state law.

“This court is not at liberty to infer that the legislature intended to preempt local regulation in direct contravention of the legislature’s express provisions to the contrary,” the court wrote.

Scott Howard, BPW attorney, called the ruling “clear validation.”

The Michigan Septic Tank Association could appeal the ruling to the Michigan Supreme Court, but Howard said he doubts the high court would take it up.

Neither the association’s attorney nor its president could be reached for comment.

The ruling, if it stands, also would clear the way for the county to move from individual township ordinances to a single, county-wide ordinance, Howard said.

“It would certainly streamline everything and you have different positions on enforcement in some of these townships,” Howard said.