Howard Lake-Waverly Herald, July 2, 2001

Superior wins case over Wright County in district court

By John Holler

Heading into its court case with Superior Services, Inc., owner of the Superior-FCR Landfill, officials from Wright County were confident that their side would prevail in front of a jury.

But, as Assistant County Attorney Brian Asleson said shortly before the trial began, it's always a roll of the dice when handing a case to a jury.

That comment proved prophetic, as the jury deliberated just four hours before handing down its verdict Thursday, June 21 - which sided with Superior's contention of wrongdoing by the county.

"What the verdict came down to was two primary questions," Asleson said. "The first was related to the adoption of a waste handling district ordinance that was found to have discriminated against interstate commerce.

"Secondly, the denial of a re-zoning of 40 acres for use in landfilling was found unconstitutional and discriminatory."

Asleson said that he was surprised by the verdict, because he thought the county had made its point well in court to the validity of its argument.

"It certainly wasn't the outcome that we expected," Asleson said. "But we were happy with how the trial went and how our case was presented."

The case, which ran over an 11-day span in U.S Eighth District Court in Minneapolis, hinged on what the jury felt was evidence that carried more weight than other items brought into discussion.

For Commissioner Ken Jude, the biggest surprise for him at the trial was that he was never called to testify.

"I was ready to testify," Jude said. "I was told three times I was going to be called, but never was.

They called four other commissioners (current board members Pat Sawatzke, Dick Mattson and Jack Russek and former commissioner Judie Rose) but never put me on the stand."

Jude, who had long supported trying to negotiate a settlement with Superior, said the county's stance on the zoning amendment and the creation of a waste handling district left little gray area for compromise.

"The majority of the board said no to any negotiation," Jude said. "There was a line drawn in the sand and it stayed that way. I don't like garbage. Nobody does. But if it's legal to do what (Superior is) doing, who am I to say absolutely no.

"If we could have negotiated, maybe we could have got a smaller amount approved. Superior was willing to discuss options with the county to make it financially better for us.

"But, the only option the majority of the board went with was an all or nothing approach and we lost."

Superior's legal team took a strange tactic in its defense - claiming that the zoning ordinance restricted interstate commerce and didn't allow garbage to come from other states into its facility.

While the argument made no sense to Sawatzke, who disputes the claim of out-of-state garbage ever coming to the facility, it worked in the minds of the jury.

"It was a complicated case, and I don't think the jury ever fully understood the argument that well," Sawatzke said.

"Interstate commerce was a confusing argument since nobody at the county level was ever aware that garbage was coming in from outside the state."

Sawatzke said the jury ignored no evidence of any waste being transported across state lines, since no paperwork showed it and it simply didn't make any sense to transport it to Wright County.

"When Superior filled out its paperwork with the PCA (Pollution Control Agency), it listed several places where garbage was coming from and none of them were from outside Minnesota," Sawatzke said.

"The other question that didn't get answered was the fact that it is cheaper to landfill in Iowa and Wisconsin than it is in Wright County.

"That being said, where would this garbage from out of state have come from, and why would it have come here?"

Those questions may never be answered. While the county does have the option to appeal the decision, as of now, the county has 30 days to repeal its waste handling district ordinance, as well as reviewing and approving Superior's rezoning request.

"The possibility of appeal is still out there as far as it relates to the ordinance," Asleson said. "But, there's also the question of whether there would be any benefit to doing an appeal that could potentially create a bad law for other zoning autorities."

For it's part, while happy with the decision, local Superior officials declined comment on the court verdict. Superior-FCR Manager Rod McGillivray was contacted for comment and referred all questions to Superior's corporate office in Milwaukee.

While the case now looks to be over, it has left some hard feelings over the county's stance on the issue.

While the cost of litigating the case was paid by the Minnesota Counties Insurance Trust, the cost of this lengthy legal battle has taken a toll on Wright County far beyond the scope of merely arguing the case in court.

"I hope it's over now," Jude said. "There were hundreds, if not thousands, of hours spent in staff time in the county attorney's office and the planning and zoning office, preparing for this case, and that carries a pretty big price tag with it.

"When you consider that all that time and money could have been used to do the other jobs those departments have, you have to wonder if it was all worth it?

"This matter cost Wright County a lot of money in staff time, and we didn't get out of it anything close to what we had wanted."

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