Grandfather Clause Permitting Outdoor Storage of Fertilizers

by Tina
(Sheboygan, WI)

Visitor Question: The business next to mine is claiming they can store Milorganite, fertilizers and the like outside under tarps because of a grandfather clause. I have asked the city to view the documents supporting these claims and they are failing to produce them. I've contacted everyone at the city level and state agencies with no results. I am looking for a direction to take short of hiring an attorney. Any help you can provide is much appreciated!

Editors Reply: For the benefit of our visitors who may not be familiar with Milorganite, it is a brand of fertilizer made from processed human waste. Its name is a trademark of the The Milwaukee Metropolitan Sewerage District.

We don't understand why the city can't produce the page or pages of a document showing that certain practices are "grandfathered." (As another aside for readers who may not know the term, a land use or practice is considered to be grandfathered when zoning or other laws permit something that does not conform to current law to continue as long as it existed before the new regulation was imposed.)

We would suspect that this grandfathering is part of the zoning ordinance. Possibly your town has other specialized ordinances, such as environmental regulations, that would be relevant.

Our only suggestions about finding the grandfather clause, if one exists, are to read the zoning ordinance yourself, to ask the city attorney, and to take your question up to the mayor if you haven't. Sometimes when a higher level officials asks a question, staff members will go to greater lengths to provide an answer than when a citizen asks.

Most cities now post their zoning ordinance online. If this is not true where you are, you may have to read the paper copy at city hall.

In addition, call the city attorney. If there is no response, walk up to the attorney before or after a city council meeting. Although city attorneys usually defend the city fiercely when approached face to face by a citizen, our experience is that they do take note of what might be a future liability for the city. Behind the scenes, the attorney could become your ally.

As to potential hazards to human health or to groundwater resulting from fertilizer, it is more likely that federal government standards come into play than state standards. We say this without having researched Wisconsin regulatory practice, but you might have more luck asking EPA (the U.S. Environmental Protection Agency) about specific fertilizers.

This brings up the issue that each specific fertilizer will have a different risk profile, and that even specific manufacture dates can show different chemical compositions. If you want to pursue this further, it would be wise to note each brand of fertilizer that is being stored outdoors and on the ground.

Even if you hire an attorney, someone will need to research and document exactly what is being stored, research the composition of each fertilizer, and search for relevant federal or state regulations. There is no doubt that will be an expensive process.

So our best advice would be to try to pursue this matter with your local government. Maximize pressure on them through organizing with any other neighbors and local environmental organizations. Take your case to the media.

You also might find surprising progress by working directly with the business after you have mobilized neighbors, generated a little interest on the part of the city, and alarmed environmental groups. Therefore we urge that you keep your relationship with the business civil, avoiding personal attacks on their integrity and intentions. When citizens are able to do this, they increase the chances of success when a business begins to appreciate how serious they are and how well they are able to swing public opinion to their side.

It sounds like you are doing everything right. Broaden your campaign to include more people, insist that the city be more forthcoming with information, and align yourself with local environmental and public health groups that might be interested in the issue. Remain businesslike in any dealings with the business in question.

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