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February 21, 2013

Court of Appeals upholds restrictive septage disposal ordinance despite direct conflict with Michigan statute

Because Michigan's septage waste disposal statute explicitly states it does not preempt local ordinances imposing stricter requirements, the Court of Appeals in Gmoser's Septic Service LLC v Michigan Septic Tank Association upheld East Bay Township's mandate that all township septic waste be disposed of in the Grand Traverse facility.

In an effort to remove East Bay's disposal restriction, Plaintiffs sought declaratory relief striking the ordinance as invalid. Plaintiffs argued that MCL 324.11701 et seq., which regulates septage disposal and servicers, preempted the ordinance. The trial court disagreed, and granted summary disposition in the defendants' favor.

The Court of Appeals affirmed. Though Part 117 of Michigan's Natural Resources and Environmental Protection Act is a comprehensive statutory regime, and the ordinance's stricter requirements directly conflict with it, the statute explicitly states that it does not preempt 'an ordinance of a governmental unit that prohibits the application of septage waste to land within that governmental unit or otherwise imposes stricter requirements that this part.' Because the Township's ordinance is stricter than Part 117, the Michigan Court of Appeals held that it is not preempted.

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