Petition for Writ of Certiorari — Waste Contractors, Inc. v. Lauderdale County Commission

| Supreme Court, U.S,

90-2 35 EFILEQ

AUG 6 1990

JOSEPH F. SPANIOL, JR,

No. CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

WASTE CONTRACTORS, INC., PETITIONER

LAUDERDALE COUNTY COMMISSION AND

THE STATE OF ALABAMA, RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

ANDREW J. PINCUS *

Mayer, Brown & Platt

2000 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 778-0628

H. THOMAS WELLS, JR.

JAMES L. PRIESTER

Maynard, Cooper,

Frierson & Gale, P.C.

1901 Sixth Avenue, North

2400 AmSouth/Harbert Plaza

Birmingham, Alabama 35203-2602

(205) 254-1000

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

hall

QUESTIONS PRESENTED

Petitioner Waste Contractors, Inc., obtained from the

Lauderdale County Commission a license to construct

and operate a sanitary landfill in Lauderdale County,

Alabama. The Commission later revoked the _ license

without providing Waste Contractors either prior notice

or an opportunity to be heard. The Supreme Court of

Alabama acknowledged that the revocation of the license

violated Waste Contractors’ federal due process rights,

but refused to invalidate the Commission’s action. The

court held that the Commission’s initial decision grant-

ing the license to Waste Contractors violated the due

process rights of the “affected citizenry” of Lauderdale

County—the persons living in the general area surround-

ing the proposed landfill site—and that this due process

violation excused the subsequent violation of Waste Con-

tractors’ due process rights. The questions presented

are:

1. Whether the- protections of the Due Process Clause

extend to persons who claim that they will be affected

in some way by a government land use decision but have

no ownership or other property interest in the land at

issue.

2. Whether, assuming that the Commission did vio-

late the due process rights of the “affected citizenry”

when it awarded the landfill license to Waste Contrac-

tors, the Commission was for that reason free to revoke

the license without providing Waste Contractors with

prior notice and an opportunity to be heard.

(1)

Il

RULE 29.1 STATEMENT

Petitioner Waste Contractors, Inc.’s parent corpora-

tion is Waste Management of North America, Ine.; the

latter company’s parent corporation is Waste Manage-

ment, Inc. Waste Contractors, Ine. has no subsidiaries

other than wholly owned subsidiaries.

TABLE OF CONTENTS

QUESTIONS PRESENTED

RULE 29.1 STATEMENT .

OPINIONS BELOW ipataiessapsisapiabamsainensees

JURISDICTION .....

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT

A. The Search For A Landfill Site

B. The Revocation Of The License

ED Shree eee

REASONS FOR GRANTING THE PETITION

I.

THIS COURT SHOULD REVIEW THE ALA-

BAMA SUPREME COURT’S DETERMINA-

TION THAT THE “AFFECTED CITIZENRY”

OF LAUDERDALE COUNTY WERE DE-

PRIVED OF THEIR PROPERTY IN VIOLA-

TION OF THE FEDERAL DUE PROCESS

CLAUSE = ae NE tan

A. Persons Who Claim That They Will Be Af-

fected By A Government Land Use Decision

But Have No Property Interest Whatsoever

In The Land At Issue Do Not Have An In-

terest Protected By The Due Process Clause.

B. The Alabama Supreme Court’s Erroneous

Construction Of The Due Process Clause

Conflicts With Decisions Of A Number Of

Federal Courts Of Appeals And State Su-

preme Courts And The Question Is One Of

Substantial Practical Importance

(III)

Page

o of wo Ww

14

IV

TABLE OF CONTENTS—Continued

Page

Il. THE ALABAMA SUPREME COURT'S RUL-

ING THAT THE COMMISSION’S VIOLATION

OF THE “AFFECTED CITIZENRY[’S]” DUE

PROCESS RIGHTS EXCUSED THE COUNTY

COMMISSION’S SUBSEQUENT VIOLATION

OF WCI’S DUE PROCESS RIGHTS ALSO

PRESENTS AN IMPORTANT QUESTION

WARRANTING THIS COURT’S ATTEN-

TORTIE, wsiicacsacnteccatbalseniadagedendaiaddiansabnisbteieiounaditbadiaen 16

A. The County Commission Cannot Avoid The

Consequences Of Its Violation Of WCI’s Due

Process Rights By Pointing To Its Previous

Violation Of Other Parties’ Constitutional

MI Sis ceckedtescccann acenteeenee aie ie aie cess 17

B. The Correctness Of The Alabama Supreme

Court’s “Two-Wrongs-Defeat-A-Right” Ap-

proach To Due Process Analysis Should Be

Reviewed By This Court... 19

IIE s5cecsstoscicbacsstnnatestecmentertees pieeeansikacbgpnmdle 21

TI TI ico ivinkbdbeeconensatenauieaanaaxhauedeons ‘bite laasstaabe la

APPENDIX B

APPENDIX C

et.

——

Vv

TABLE OF AUTHORITIES

Cases : Page

Ancarrow V. City of Richmond, 600 F.2d 443 (4th

Cir.), cert. denied, 444 U.S. 992 (1979)... 13

Armstrong V. Manzo, 380 U.S. 545 (1966) .............. 7

BAM Historie Dist. Ass’n v. Koch, 723 F.2d 233

ee As SD sects 13, 15

Barry Vv. Barchi, 443 U.S. 55 (1979)... 7

Bell v. Burson, 402 U.S. 535 CRNEE nee 7

Board of Regents v. Roth, 408 U.S. 564 (1972) ....8,9, 11

Brock v. Roadway Express, Inc., 481 U.S. 252

GAD stgstenscterntesmsarticcntn ee 8

Brown V. Brienen, 722 F.2d 360 (7th Cir. 1983). 14

City of Tuscaloosa v. Bryan, 505 So. 2d 330 (Ala.

OPP sccicarctinnnaaistctanensnacnnscihtsie acs ean ee 10

City of West Chicago v. United States Nuclear

Regulatory Comm’n, 701 F.2d 632 (7th Cir.

ices abiein cee ne Note bipstne a eee 13

Cleveland Board of Education v. Loudermill, 470

We. GO CUO i ee 9,17

Codd v. Velger, 429 U.S. 624 (1977) ___ an 18

General Dynamics Corp. v. City of Groton, 184

Conn. 483, 440 A.2d 185 (1981) ss” 15

Goldberg Vv. Kelly, 397 U.S. 254 (1970). 20

Goodrich Vv. Detroit, 184 U.S. 432 GME peiictnscancescs 15

Gray V. Mississippi, 481 U.S. 648 (1987) 18

Hancock Vv. City of Muskogee, 250 U.S. 454 (1919). 15

In re Great Waters of America, 140 Vt. 105, 435

A.2d 966 (1961) ....................00020......--......... 15

Izaak Walton League of America Vv. Marsh, 655

F.2d 346 (D.C. Cir.), cert. denied, 454 U.S. 1092

(1981) ER RP Aen PO vce. 18, 15

Kerley Industries, Inc. vy. Pima County, 785 F.2d

1444 (9th Cir. 1986) vesceee-. 19-20

Leis v. Flynt, 489 U.S. 438 (1979) ___ ami 9,11

Logan Vv. Zimmerman Brush Co., 455 U.S. 422

(1982) np aat Pome Soe RIND lees od he EA 11

Lynwood Property Gwners Ass’n v. Lands De-

scribed, 359 So. 2d 357 (Ala. 1978) ne Seb 10

Masters v. Pruce, 290 Ala. 56, 274 So. 2d 33

(ea es Eee CE 5) 7 40

VI

TABLE OF AUTHORITIES—Continued

Page

Mathews V. Eldridge, 424 U.S. 319 (1976) 9

Mehta Vv. Surles, No. 89-7965 (2d Cir. May 29,

1990) eee OTR an hie a 13

Morrissey V. Brewer, 408 U.S. 471 (1972) 20

Mosher V. City of Boulder, 225 F. Supp. 32 (D.

Colo. 1964) 14, 15

Noble v. Union River Logging R.R., 147 US. 165

(1893) . 7

O'Bannon V. Town Court Nursing Center, 447 U.S.

773 (1980) , 11,12

Olim Vv. Wakinekona, 461 U.S. 238 (1983) 14

Paul Vv. Davis, 424 U.S. 693 (1976) 10, 12, 13

Peralta Vv. Heights Medical Center, Inc., 485 US.

80 (1988) , 7

Perry V. Sindermann, 408 U.S. 593 (1972) 9

Reichelderfer V. Quinn, 287 U.S. 315 (1932) 13

St. Louis & Southwestern Ry. v. Nattm, 277 U.S.

157 (1928) 15

Save Our Dunes Vv. Alabama Dep't of Environ-

mental Management, 834 F.2d 984 (llth Cir.

1987) ar . 14-15

Simons V. Gorsuch, 715 F.2d 1248 (7th Cir. 1983) 15

York v. City of Cedartown, 648 F.2d 231 (5th Cir.

Unit B 1981) 13, 14

Constitution and Statutes:

United States Constitution Amend. XIV passim

Ala. Code § 22-27-5(b) 3

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

WASTE CONTRACTORS, INC.. PETITIONER

LAUDERDALE COUNTY COMMISSION AND

THE STATE OF ALABAMA, RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI °

TO THE SUPREME COURT OF ALABAMA

Waste Contractors, Inc., respectfully petitions this

Court for a writ of certiorari to review the judgment of

the Supreme Court of Alabama in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Alabama ‘App..,

infra, la-lla! is not yet reported. The opinion of the

Court of Civil Appeals of Alabama ‘App., infra, 12a-

20a' and the orders of the Lauderdale County Circuit

Court granting summary judgment to the Lauderdale

County Commission | App., infra, 2la-25a) are unreported.

JURISDICTION

The judgment of the Supreme Court of Alabama was

entered on February 16, 1990, and a petition for re-

hearing was denied on April 6, 1990 (App., infra, 26a-

ONSTITIt

rIONAT

INVOLVED

PROVISION

STATEMENT

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important respects. First, it dramatically expands the

class of government actions subject to due process re-

quirements. Second, it drastically impairs the constitu-

tional protection now extended to persons who hold gov-

ernment licenses by allowing government to revoke such

licenses without according the licenseholders notice anc

an opportunity to be heard.

A. The Search For A Landfill Site

The search for a new landfill site in Lauderdale County

began in 1985. By that time, it had become apparent

that the County’s existing facilities for the disposal of

waste would soon be full: prudent local planning dictated

that arrangements be made for a new facility. To that

end, Waste Contractors, together with the Lauderdale

County Commission—the County's governing body, which

is authorized to license landfill operations (see Ala. Code

22-27-5'b) '—hegan to research and evaluate potential!

sites. R. 102-103.

The first site selected, the 200 acre Prides Ferry Site,

was proposed in June 1985. After consulting with WCI

and visiting the site themselves, the Lauderdale County

Commissioners unanimously approved the site: WCI be-

gan environmental testing and applied for a permit from

the Alabama Department of Environmental Managemen‘

(“ADEM”). R. 107; see also R. 103. WCI spent over

$26,000 evaluating and testing the site, purchasing op-

tions on the land, and applying for state permits. R.

119. However, environmental research revealed that use

of the site would threaten two endangered species of

wildlife indigenous to Alabama: the blind Alabama cave

fish and the gray bat. WCI accordingly withdrew its

permit application voluntarily and began seeking other

landfill sites. R. 103.

Over the course of the next two vears, WCI and the

Commission considered several other sites. In each case.

the Commission and WCI worked together to evaluate

4

the suitability of the site. WCI spent several thousand

dollars on each site, commissioning necessary environ-

mental studies and conducting preliminary inspections.

But, for reasons ranging from the need to protect an-

other endangered species—the snail darter—to popula-

tion density to problems with the land or soil, these sites

were found to be unsuitable. R. 103, 119-120.

Finally, in early 1987, WCI and the Commission lo-

cated a seemingly ideal location. The Greenbrier Site,

as it is called, is situated on 115 acres of land in a

sparsely populated area of Lauderdale County; indeed,

the Lauderdale County Commission had itself considered

purchasing the site for a county operated landfill. WCI

and the County Commission discussed and visited the

site several times during March and April of 1987.

R. 103-104.

The Lauderdale County Commission unanimously

granted WCI a landfill license for the Greenbrier Site

on April 14, 1987. R. 82. One month later, the Com-

mission again unanimously approved a proposal to add

125 adjoining acres to the site. R. 87. Under the terms

of the operating license granted to Waste Contractors,

the company was authorized to establish the site and

operate it indefinitely, provided that it complied with all

state regulations, disposed of no toxic waste in the facil-

ity, and paid Lauderdale County a fee of 1% of gross

revenues or $20,000, whichever was greater. R. 82, 8&7.

Waste Contractors immediately began the various ar-

cheological and environmental surveys required for state

approval of the site. In addition to the nearly $20,000 it

had spent prior to final approval by the County Commis-

sion, WCI spent roughly another $20,000 in the two

months following approval. Including the costs of op-

tions on the land and employee time and travel devoted

to the project, WCI expended approximately $49,000 de-

veloping the Greenbrier Site prior to June 22, 1957.

R. 120-121.

—

5

B. The Revocation Of The License

On June 22, 1987, the Lauderdale County Commission

abruptly reversed itself, disapproving the Greenbrier Site

and withdrawing WCI’s permit to operate the landfill.

R. 89. WCI had received no notice that the Greenbrier

Site would be discussed by the Commission and had been

given no other opportunity to be heard on the subject.

The Greenbrier Site did not appear on the Commission’s

agenda for that date. R. 104. The Commission’s minutes

reveal only that “|wlith a large delegation of citizens

from the Zip City area present”—Zip City is a small

community located near the Greenbrier Site—the Com-

mission decided to revoke WCI’s license “|w]ithout any

discussion.” R. 89. The Commission did not set forth

any reasons for its decision to revoke WCI’s license.

C. The Litigation

Following the Lauderdale County Commission’s revo-

cation of its license to operate the Greenbrier landfill,

WCI promptly commenced this action in the Circuit

Court of Lauderdale County, alleging that the Commis-

sion’s decision violated state and ‘federal law. R. 1-13.

Count Two of the complaint specifically alleged that the

revocation of the license deprived WCI of its property

without due process of law because WCI was not afforded

prior notice and an opportunity to be heard. R. 7.

An organization of Zip City residents calling them-

selves Lauderdale Citizens for a Clean Environment

(“LCCE”) attempted to intervene in this action. LCCE

stated that it opposed construction of the landfill on the

ground that the landfill would adversely affect the value

of their land, the quality of the environment, and the

hunting and other recreational uses of the area surround-

ing the landfill site. R. 23-37.' One of LCCE’s legal ar-

'LCCE, together with a number of individuals, asserted 14

“factors” establishing their interest in the case (R. 23-24):

1. Their interest in the quiet enjoyment of their private prop-

erty. 2. Their interest in the value of their property. 3. Their

6

guments was that its members had been deprived of their

due process rights by the decision granting the landfill

license to WCI. R. 44. The circuit court never ruled

on LCCFE’s motion to intervene.

The circuit court granted summary judgment in favor

of the Commission. App., infra, 21a-23a. It found that

the Commission had acted within its legal authority in

revoking WCI’s license, reasoning that the Commission

must be entitled to rescind licenses summarily in order

to maintain flexibility to respond to new information.

Id. at 22a.

Waste Contractors appealed and the Alabama Court of

Civil Appeals reversed, holding that the Lauderdale

County Commission had deprived WCI of its procedural

due process rights because the Commission had not pro-

vided it with notice and an opportunity to be heard. The

court found that there had been ‘‘a total failure of notice”

and that there had “obviously |been|] no hearing” and

concluded that “the county commission was, therefore,

interest in passing on this property to their heirs. 4. Their in-

terests in preserving and protecting the aesthetic quality of

their environment. 5. Their interest in enjoying, observing

and hunting wildlife. 6. Their interest in the enjoyment of

outdoor recreational resources. 7. Their interest in preventing

the loss of use and value of their recreational resources.

8. Their interest in protecting themselves from breathing pol-

luted air and drinking polluted water. 9. Their interest in

preventing the nuisance of foul odors emanating from the

proposed landfill. 10. Their interest in the use of well water

from under the ground in the vicinity. 11. Their interest in

preventing the pollution, contamination and destruction of

their natural resources and natural wel! water supply. 12.

Their interest in preventing irreparable harm to the environ-

ment. 13. Their interest in the maintenance of their own

health, safety and welfare in their homes, family and com-

munity. 14. Their interests, generally, in protecting their best

interests as private property owners and the best interests of

their families.

‘

without authority to take the action it did.” App., infra,

18a.

The Supreme Court of Alabama reversed the decision

of the Court of Civil Appeals. App., infra, la-lla. Al-

though it began its discussion of the due process issue

by noting that “|wle agree with the Court of Civil

Appeals in its conclusion that WCI’s due process rights

were violated,” the Supreme Court of Alabama nonethe-

less refused to previde any relief. Jd. at 9a. The court

stated that “the affected citizenry” had a due process

right to notice and an opportunity to be heard in the

initial proceeding in which WCI received its license to

operate the Greenbrier Site; the court concluded that the

two procedural due process violations cancelled each

other out: “If WCI’s due process rights were violated

by the subsequent revocation of the license without a

hearing, then certainly the due process rights of the

affected citizenry were violated when the license was

first issued without a hearing.” Jd. at 8a.”

REASONS FOR GRANTING THE PETITION

The Alabama Supreme Court recognized, as it had to,

that the Lauderdale County Commission’s revocation of

the landfill license without any prior notice violated WCI’s

due process rights. App., infra, 9a. See, e.g., Barry Vv.

Barchi, 443 U.S. 55, 64 & n.11 (1979) (revocation of

horse trainer license must accord with due process! :

Bell v. Burson, 402 U.S. 535 (1971) ‘driver’s license) ;

Noble v. Union River Logging R.R., 147 U.S. 165 (1893)

(right of way over public land). Incredibly, however,

the court refused to provide a remedy to ‘‘wipe|]| the

slate clean,” as the Due Process Clause requires. Arm-

strong V. Manzo, 380 U.S. 545, 552 (1965): see also

Peralta Vv. Heights Medical Center, Inc., 485 U.S. 80,

86-87 (1988).

“The Alabama Supreme Court also determined that the Commis-

sion’s action was proper under stzt¢ law. App., infra, la-11la.

8

The sleight-of-hand by which the Alabama court re-

fused to overturn a license revocation that concededly

violated due process rests on two separate propositions.

First, that the Zip City residents were deprived of a

property interest protected by the Due Process Clause

when the Commission granted the landfill license to WCI.

Second, that two due process violations may cancel each

other out, relieving a government entity of an otherwise-

existing obligation to afford due process to a_ person

deprived of liberty or property. Each of these determi-

nations is plainly wrong: each conflicts with decisions of

other state and federal courts; and each addresses an

issue of considerable practical importance. The Alabama

Supreme Court’s flawed due process analysis should be

reviewed by this Court.

I. THIS COURT SHOULD REVIEW THE ALABAMA

SUPREME COURT’S DETERMINATION THAT

THE “AFFECTED CITIZENRY” OF LAUDERDALE

COUNTY WERE DEPRIVED OF THEIR PROPERTY

IN VIOLATION OF THE FEDERAL DUE PROCESS

CLAUSE

It is settled law that procedural due process rights

attach only when government action threatens to deprive

an individual of a liberty or property interest protected

by the Due Process Clause of the Fourteenth Amend-

ment. See, ¢.q.. Brock v. Roadway Express, Inc., 481 U.S.

252, 260 (1987); Board of Regents v. Roth, 408 U.S.

564, 576-578 (1972). The Alabama Supreme Court here

concluded that the decision approving the landfill site

deprived the “affected citizenry” of a property right pro-

tected by the Due Process Clause. That determination

is squarely inconsistent with this Court’s decisions de-

fining the reach of the Due Process Clause. Indeed, every

court that has considered the precise question presented

in this case—other than the Alabama Supreme Court—

has concluded that citizens have no due process rights

in connection with land use decisions concerning property

owned by third parties. And, in view of the large num-

9

ber of land use decisions made by state and local govy-

ernment, the Alabama court’s ruling that owners of

adjacent land do have an_ interest protected by the

Due Process Clause will have substantial real world

consequences.

A. Persons Who Claim That They Will Be Affected

By A Government Land Use Decision But Have No

Property Interest Whatsoever In The Land At Issue

Do Not Have An Interest Protected By The Due

Process Clause.

Procedural due process analysis involves a well-estab-

lished two step inquiry: first, a court must determine

Whether the state action complained of adversely impacts

a life, liberty, or property interest cognizable under the

Fourteenth Amendment: second. if a protected interest

is at stake, a court must decide what procedural safe-

guards are constitutionally required in order to balance

the needs of economy and justice. See, e.9., Cleveland

Board of Education vy. Loudermill, 470 U.S. 532, 538-

942 (1985): Mathews vy. Eldridge, 424 U.S. 319, 332-333

(1976).

It is axiomatic that “the range of interests protected by

procedural due process is not infinite.” Roth, 408 U.S.

at 570. “To have a property interest in a benefit, a per-

son clearly must have more than an abstract need or

desire for it. He must have more than a unilateral ex-

pectation of it. He must, instead, have a legitimate claim

of entitlement to it.” Jd. at 577. That claim of entitle-

ment must be grounded in an independent source of law,

such as a “statute or legal rule or * * * mutually ex-

plicit understanding.” Leis v. I'lynt, 439 U.S. 488, 442

(1979) (per curiam). Interests lacking a foundation in

positive law or amounting to only a “mere subjective

‘expectancy’”’ are not protected by the Due Process

Clause. Perry v. Sindermann, 408 U.S. 593, 603 (1972).

In ruling that Zip City residents living near the Green-

brier Site had a constitutional right to be heard before

10

the Lauderdale County Commission could issue a landfill

license to WCI, the Alabama Supreme Court concluded

that a landowner’s interest in the use of his neighbor’s

property is sufficiently concrete to be protected by due

process. The court observed that “|p]rocedural due

process is not properly afforded when one’s life, liberty,

or property interests are affected without prior notice and

an opportunity for a hearing’ (App., infra, 8a) and

stated that “the original license should not have been

issued without notice and an opportunity for a hearing,”

labeling that failure a “violat{ion]” of the “due process

rights of the affected citizenry.” /d. at 8a-9a.*

That determination is plainly wrong. Third parties

enjoy no general constitutional right to due process in

connection with land use decisions concerning only the

property owned by others. The sorts of aesthetic, eco-

nomic, environmental, and recreational interests that may

be asserted by a third party to a government land use

determination—and that were asserted by the Zip City

residents in this case (see pages 5-6 & note 1, supra)—

are insufficient as a matter of law to trigger the protec-

tion of the Due Process Clause.

The starting point in determining whether an individ-

ual has a constitutionally protected liberty or property

interest is whether the asserted interest is grounded in

an independent source such as state law. But not every

interest grounded in state law is protected by the Due

Process Clause. See, e.g., Paul v. Davis, 424 U.S. 693,

710-712 (1976). Rather, this Court has identified sev-

eral criteria that must be applied to ascertain whether

an interest with some basis in state law rises to the level

3 Significantly, the same conclusion is apparent in several other

decisions of the Alabama Supreme Court. See City of Tuscaloosa

Vv. Bruan, 505 So. 2d 330 (Ala. 1987); Lynwood Property Owners

Ass'n Vv. Lands Described, 259 So. 2d 357 (Ala. 1978); Masters Vv.

Pruce, 209 Ala. 56, 274 So. 2d 33 (1973).

11

of a property interest protected by the Due Process

Clause,

First, a court must assess the concreteness of the as-

serted interest; in other words, is the entitlement firmly

defined by state law? See Leis, 439 U.S. at 441-443:

Roth, 408 U.S. at 577-578. The more closely an interest

resembles a right of ownership or a right defined by con-

tract, the more likely compliance with due process will

be required before the government may take it away. If,

on the other hand, state law holds that the nature and

scope of the asserted interest turns on the exercise of

unguided discretion, the interest is not likely to be suf-

ficiently conerete to give rise to a constitutionally pro-

tected entitlement. “The hallmark of property * * * is

an individual entitlement grounded in state law, which

cannot be removed except ‘for cause.’ ” Logan v. Zim-

merman Brush Co., 455 U.S. 422, 430 (1982).

A second consideration is whether the challenged gov-

ernment action directly threatens the asserted interest.

In O'Bannon v. Town Court Nursing Center, 447 U.S.

773 (1980), this Court ruled that the interests of nurs-

ing home residents in continued residence at the home

did not entitle them to invoke the Due Process Clause to

challenge the revocation of the home’s operating author-

ity. The Court explained that its refusal to recognize

procedural due process rights rested on “[t]he simple dis-

tinction between government action that directly affects a

citizen’s legal rights, or imposes a direct restraint on his

liberty, and action that is directed against a third party

and affects the citizen only indirectly or incidentally.”

Id. at 788. Where the alleged harm stems from govern-

lnent action directed against a third party, the interest

will not suffice to invoke the Due Process Clause because

that provision of the Constitution “does not apply to the

indirect adverse effects of governmental action.” Jd. at

789. This is true even if the government action against

the third party may create “serious inconvenience or

harm.” /d. at

OO.

Finally, an interest indirectly impaired by government

is especially unlikely to receive due process protection

when it is premised on a traditional tort right. Where

a damages remedy is available against the person who is

the direct cause of the harm complained of, courts are

reluctant to subject government to the requirements of due

process on the theory that it is the remote cause of the

damage. Thus, in O’Bannon the Court suggested that the

nursing home residents might have a damages claim

against the home and implied that it would be cumber-

some and inefficient to permit these residents to “inter-

ject themselves,” as a matter of constitutional right, into

the dispute between the home and the government that

only indirectly affected them. O'Bannon, 447 U.S. at 787,

788; see also Paul v. Davis, 424 U.S. at 711-712.

The flaw in the Alabama Supreme Court’s determina-

tion is easily demonstrated when the foregoing criteria

are applied to the interests in the landfill licensing as-

serted by the Zip City residents when they attempted to

intervene in this litigation. See pages 5-6 & note 1, supra.

These interests fall into four general categories. The first

is economic, encompassing the Zip City residents’ interest

in the value of their property and in their right to be-

queath it to their heirs. The second category is aes-

thetic—an interest in “preserving and protecting the

aesthetic quality of their environment.” The third group

is recreational, including interests in enjoying and hunt-

ing local wildlife and experiencing outdoor recreational

resources. The fourth, and most numerous, category of

interests is environmental; this essentially includes the

interests conventionally protected by nuisance law, in-

cluding the right to quiet enjoyment of one’s property, an

interest in avoiding pollution and foul odors, and a gen-

eral concern for environmental quality. None of these

interests is adequate under the Fourteenth Amendment

13

to triever procedural protections; indeed, the Alabama

court's discord with other courts on this point is stark.

To begin with, the generalized aesthetic and recrea-

tional interests lack a sufficiently firm foundation in state

law to rise to the level of legitimate claims of entitlement

protected by the Due Process Clause. See City of West

Chicago Vv. United States Nuclear Regulatory Comm’n,

701 F.2d 632, 645 (7th Cir. 1983); Izaak Walton Leaqgue

of America Vv. Marsh, 655 F.2d 346, 361 (D.C. Cir.).

cert. denied, 454 U.S. 1092 (1981). “{Alabama] law

does not extend to {neighboring landowners] any legal

guarantee of present enjoyment |of these interests} which

has been altered” by the challenged government action.

Paul v. Davis, 424 U.S. at 711 (emphasis added).

The Zip City residents’ interests in the value of their

property, although more substantial than their general-

ized aesthetic and recreational interests, are nonetheless

inadequate to call the Due Process Clause into play. Be-

cause these interests could only be impaired indirectly

as a result of the licensing of the landfill, and because

the residents’ right to sue the landfill operator for a pri-

vate nuisance would be preserved, fears of diminished

property values fall far short of establishing a property

interest. “A person cannot claim a constitutionally-pro-

tected property interest in uses of neighboring property

on the ground that these uses may affect the market value

of his own property.” Mehta v. Surles, No. 89-7965. slip

op. at 4174 (2d Cir. May 29, 1990) (per curiam): ac-

cord Reichelderfer Vv. Quinn, 287 U.S. 315 (1932): BAM

Historic Dist. Ass’n Vv. Koch, 723 F.2d 233, 237 (2d Cir.

1983); York v. City of Cedartown, 648 F.2d 231, 232

(5th Cir, Unit B 1981); Ancarrow v. City of Rich-

mond, 600 F.2d 443, 447 (4th Cir.), cert. denied, 444

U.S. 992 (1979).

Finally, the neighboring landowners’ rights to quiet

enjoyment of their property lack the firm grounding in

state law needed to trigger Fourteenth Amendment pro-

tection. Because nuisance action to vindicate those

rights involves a sensitive and unpredictable balancing of

interests, the rights themselves are vague and indetern

nate. “The tort rights that nuisance law gives a land-

owner against a polluter do not have the solidity of

common law property rights, and the interest they protect

is not property under the Fourteen.h Amendment

Brown Vv. Brie . 722 F.2d 360. 364 (7th Cir. 1983

accord York, 648 F.2d at 232: Mosher v. City of Bi

225 2 Supp NA 1). Colo 1964

In sum, the court below plainly erred in concluding

that the approval of the landfill site deprived the are:

residents of their property within the meaning of the

federal Due Process Clause.'

Lb. The Alabama Supreme Court's Erroneous Construc-

tion Of The Due Process Clause Conflicts With De-

cisions Of A Number Of Federal Courts Of Appeals

And State Supreme Courts And The Question Is

One Of Substantial Practical Importance.

The question whether persons who are third pariies to

a land use determination have a property interest m

tected by the Due Process Clause has been addressed by

a large number of federal! and state courts. ve ry cou

to consider the question, other than the Alabama Suprem:

Court, has concluded that such persons do not have a

property interest protected by the Due Process Clause

See Save Our Dunes V. Alahama De pt of Environmenta

Management, 834 F.2d 984, 988-989 (11th Cir. 1987 no

1 'T) e concer ’ the eating: heather the fade ‘

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16

The Alabama Supreme Court has effectively required

governmental entities in the State to inform all poten-

tially interested landowners prior to making any land

use decision, no matter how trivial, in order to protect

the decision against subsequent due process attack. State

law rules regarding appropriate procedures for land use

determinations—which reflect a balance between appro-

priate community consultation and the need for efficient

decisionmakine—will be supplanted by rules grounded in

the federal Constitution and formulated by judges rather

than the communities themselves. This Court should con-

sider whether the Due Process Clause mandates that in-

trusive result.

Il. THE ALABAMA SUPREME COURTS RULING

THAT THE COMMISSION’S VIOLATION OF THE

“AFFECTED CITIZENRY([’S|”" DUE PROCESS

RIGHTS EXCUSED THE COUNTY COMMISSION'S

SUBSEQUENT VIOLATION OF WCI'S DUE PROC-

ESS RIGHTS ALSO PRESENTS AN IMPORTANT

QUESTION WARRANTING THIS COURT'S AT-

TENTION

Even if. contrary to our position, the Commission's

decision ranting the license to WCI did deprive area

residents of a property interest, the Alabama Supreme

Court nonetheless erred by concluding that the Com-

mission’s violation of these residents’ due process rights

somehow excused the subsequent violation of WCI's due

nrocess rivhts. In this context, two wrongs most assur-

edly cannot cefeat WCI’s right. The Alabama court's

conclusion that a prior violation of the Due Process

Clause could serve as a valid predicate for subsequently

denying WCI due process of law conflicts with this

Court’s precedents and a decision of a federal court of

appeals and threatens to introduce substantial uncer-

tainty and confusion into this Court’s due process juris-

prudence.

17

A. The County Commission Cannot Avoid The Con-

sequences Of Its Violation Of WCI’s Due Process

Rights By Pointing To Its Frevious Violation Of

Other Parties’ Constitutiona’ Rights.

Due process protections attach whenever government

action threatens to deprive a person of a property right.

While the method by which the person initially acquired

the property right may be relevant to the government's

power to deprive him of that right, it is wholly irrelevant

to the question whether the individual is entitled to due

process with respect to the revocation decision. Due

process at a minimum requires that a person threatened

with deprivation of property by a government entity, for

whatever reason, receive notice and an opportunity to be

heard.

That is what this Court held in Cleveland Board of

Education V. Loudermill, supra, a case involving the dis-

charge of a security cuard for lying on his employment

form. The Board of Education argued that because the

cnard acquired his job in violation of the governing em-

ployment standard he “lacked a ‘legitimate claim of en-

titlement’ to the position.” 470 U.S. at 539 n.5. This

Court rejected that argument because it relied on “a

retrospective fiction inconsistent with the undisputed fact

that {the individual] was hired and did hold the security

guard job. The Board cannot escape its constitutional ob-

ligations by rephrasing the basis for termination as a

reason why [the individual] should not have been hired

in the first place.” Jbid.

Here, the Alabama Supreme Court could not escape its

obligation to vacate the revocation of WCI's license by

invoking the fiction that the license was not validly ob-

tained in the first place because the rights of the “affected

citizenry” were violated. Regardless of how the property

was obtained, WCIT may not be deprived of it without

due process of law.

18

The Alabama Supreme Court’s contrary approach is

especially misplaced in this context because it penalizes

an entirely innocent private party—WCI—for the County

Commission’s earlier transgression of the constitutional

rights of entirely separate parties. Nothing in this

Court’s due process jurisprudence authorizes such an

absurd result.

In Gray v. Mississippi, 481 U.S. 648 (1987), this

Court 2ddressed an argument similar to the one adopted

by the Alabama Supreme Court. The Mississippi Su-

preme Court in Gray had sought to justify the unlawful

exclusion of a citizen from a capital jury on the grounds

that the judge involved hac earlier admitted several citi-

zens to the jury who shou'd have been excluded. This

Court rejected that argument unequivocally. “Our rea-

sons are embraced by that well-worn adage that ‘two

wrongs do not make a right.’ * * * |WJe cannot con-

done the ‘correction’ of one error by the commitment of

another.” Jd. at 663. The same conclusion applies here.

Finally, the Alabama Supreme Court’s decision cannot

be justified on the ground that a revocation hearing

would not serve any useful purpose. Compare Codd Vv.

Velaer, 429 U.S. 624, 627-628 (1977) ‘hearing not re-

quired where party asserting deprivation of liberty and

property did net identify the disputed issue that would

be the subject of the hearing). A hearing in this case

would serve the essential purpose of enabling the County

Commission to exercise informed discretion in determin-

ing the effect of any due process violation on the validity

of WCI’s license.

We have discovered nothing in Alabama law that re-

quires the Commission to revoke a license found to have

been awarded in violation of a third party’s due process

rights. The County Commission must hold a hearing so

that it may make an informed judgment whether revoca-

tion is warranted on the facts of this case. For example,

19

assuming that the due process rights of third parties were

violated by the decision granting the permit, the Commis-

sion could decline to revoke WCI’s license on the ground

that those third parties should have sought to vindicate

their rights by seeking judicial review of the decision

granting the permit.

Alternatively, the Commission might give interested

third parties an opportunity to present their objections

at the revocation hearing and then decide—after taking

into account those views and WCI’s responses—whether

WCTI is entitled to retain its license under the governing

statutory standards. The question of the effect of any

due process violation on the validity of WCI’s license is

thus uncertain; the issue must be addressed in the first

instance by the County Commission after WCI is given

prior notice and an opportunity to comment.

B. The Correctness Of The Alabama Supreme Court’s

“Two-Wrongs-Defeat-A-Right” Approach To Due

Process Analysis Should Be Reviewed By This

Court.

The rule applied by the Alabama Supreme Court in

this case conflicts with a recent decision of the United

States Court of Appeals for the Ninth Circuit. In Kerley

Industries, Inc. Vv. Pima County, 785 F.2d 1444 (9th Cir.

1986), Kerley Industries had received a conditional per-

mit allowing it to operate a chemical plant for 30 days.

Prior to the beginning of the 30-day period, a county

official informed Kerley that the conditional permit had

been terminated on the ground that it was improperly

issued and therefore “null and void.” Kerley brought

suit, claiming that it had a property interest in the per-

mit and was entitled to notice and an opportunity to be

heard prior to the termination of the permit.

The court of appeals held in favor of Kerley. “Having

granted | Kerley] a permit to operate its plant, the county

could not tuke it away arbitrarily, for improper reasons,

or without appropriate procedural safeguards. The fact

that |Kerley’s| operation might have violated the county's

zoning ordinance does not render its interest in the per-

mit any less deserving of constitutional protection. * * *

The permit could not be revoked without giving Kerley

an opportunity to prove the [county official] wrong.” 785

F.2d at 1446 (emphasis added; citations omitted). The

Ninth Circuit has thus squarely rejected the very prin-

ciple adopted by the Alabama Supreme Court here—that

a legal error in the decision granting a property interest

allows government to revoke that property interest with-

out affording any procedural protections to the property

owner.

Moreover, the rule adopted by the Alabama Supreme

Court will have significant practical consequences. Under

the Alabama court’s rule, a property owner can never

rely on a property interest granted by the government

because any such interest might someday be subject to

summary revocation on the ground that it allegedly was

granted in violation of law. And the Alabama rule al-

lows a government body to bootstrap its way into dealing

arbitrarily with the citizenry: if a County Commission

wants to be able to dispense with a hearing and revoke

a license at will, it need only violate some legal rule when

it grants the license in the first place.

Finally, the Alabama Supreme Court’s approach may

have repercussions far outside the land use context. For

example, if governmental error in an initial grant of

property could allow a subsequent revocation of that prop-

erty without affording due process, then a welfare re-

cipient incorrectly added to the rolls could have his or her

benefits summarily cut off, or a paroled prisoner whose

parole board had erred could be reincarcerated without a

hearing. Yet this Court has held that notice and an op-

portunity to be heard are required before these actions

may be taken. See Morrissey v. Brewer, 408 U.S. 471

(1972); Goldberg v. Kelly, 397 U.S. 254 (1970). This

——————————<—

‘ourt should review the decision below to eliminate the

“loophole” in the Due Process Clause created by t

Alabama Supreme Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ANDREW J. PINCUS *

Mayer, Brown & Platt

2000 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 778-0628

H. THOMAS WELLS, JR.

JAMES L. PRIESTER

Maynard, Cooper,

Frierson & Gale, P.C.

1901 Sixth Avenue, North

2400 AmSouth Harbert Plaza

Birmingham, Alabama 35203-2602

(205) 254-1000

August 6, 1990 * Counsel of Record

APPENDICES

la

APPENDIX A

THE STATE OF ALABAMA—

JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1989-90

)

8-557

¢

EX PARTE: LAUDERDALE COUNTY

R&-5R3

EX PARTE: STATE OF ALABAMA

Petitions for Writ of Certiorari to

the Court of Civil Appeals

RE: WASTE CONTRACTORS, INC.

£

STATE OF ALABAMA, LAUDERDALE COUNTY

(Lauderdale Circuit Court, CV-87-460 }

[Released Feb. 16, 1990]

KENNEDY, JUSTICE.

The defendants, Lauderdale County (“County”) and the

State of Alabama (“State”), seek review of the Court of

Civil Appeals’ judgment reversing a summary judgment

entered by the trial court in favor of the County and the

State. We reverse and remand.

On April 14, 1987, the Lauderdale County Commission

(“Commission”) authorized Waste Contractors. Ine.

2a

(“WCI"), to operate a solid waste landfill near Zip City

in northern Lauderdale County (hereinafter referred to

as the “Greenbrier site’).

On that date, without conducting a hearing, the Com-

mission adopted the following resolution:

“THEREFORE BE IT RESOLVED that the

Lauderdale County Commission does hereby grant

Waste Contractors permission to establish and oper-

ate a landfill in Lauderdale County provided:

“1) all rules and regulations as promulgated by

the State Health Department, State of Ala-

bama, have been met in the establishment of

and in the operation of said landfill,

“2) no toxic waste will be disposed of in the pro-

posed sanitary landfill located in Lauderdale

County, and

“3) Waste Contractors will pay to Lauderdale

County a fee equal to 1% of gross revenue

generated by the operation of this landfill,

with a minimum of $20,000 annually, for the

purpose of helping defray cost of maintaining

county roads.

“BE IT FURTHER RESOLVED that this authori-

zation given Waste Management to establish a sani-

tary landfill is confined to the location as described

in metes and bounds attached to this resolution and

made a part of this resolution.”

WCI subsequently filed a request to expand the size of

the landfill, which was granted by a resolution of the

Commission on May 11, 1987, again with a hearing.

On June 22, 1987, the Commission without a hearing.

recinded both resolutions.

In July 1987, WCI, pursuant to § 22-27-5(b!, Code of

Alabama 1975, filed a formal permit application with the

3a

Alabama Department of Environmental Management

(“ADEM”).

On August 10, 1987, the Commission adopted “License

Requirements for Sanitary Landfills,” intended to apply

to landfills not yet in operation.

WCI filed suit against Lauderdale County on August

21, 1987, alleging that the Commission was powerless to

rescind its original approval, that WCI’s rights to due

process were violated, and, by subsequent amendment to

the suit, that § 22-27-5(b) was unconstitutional because

of a failure to provide specific guidelines or standards

for the Commission to follow in determining whether a

landfill request should be granted.

At the hearing on its motion for summary judgment,

the trial court ruled in favor of the defendants. The

Court of Civil Appeals reversed and remanded. We have

granted the writ of certiorari to review that reversal.

The issues here are whether the Solid Wastes Disposal

Act, Code 1975, § 22-27-1 et seq., is unconstitutionally

vague and capricious because of a failure to establish

specific guidelines and criteria for county or local gov-

ernments to follow in the issuance of waste permits;

whether the Commission violated WCI’s due process rights

in failing to hold hearings on WCI’s applications; whether

the Commission had the authority to approve or dis-

approve WCI’s application; and whether the Commission

exceeded the authority granted to it by statute when it

established licensing requirements for sanitary landfills.

The Solid Wastes Disposal Act (‘“Act’’), Code 1975,

s 22-27-1 et seq., permits county and municipal govern-

ments, with the concurrence of the health department and

the approval of ADEM, to make available to the public

collection and disposal facilities for solid wastes. It au-

thorizes those governmental entities, either directly or

through contract with private agencies, to collect and

a

7a

cation for failure to perform under the provisions of the

\et. Again. it is fair to assume that a licensing govern-

ment would look to the standards for the issuance of per-

mits by the health department and ADEM in determining

whether to grant the initial license.

Pursuant to the Act, the health department is required

to enforce sanitary requirements for the collection of

solid wastes ond ADEM is required to exercise regulatory

control over the disposal of solid wastes. It should, there-

fore, be obvious to the licensing entity that any license

issued must comply with health department collection

regulations and ADEM disposal regulations.

What then are the standards by which a governmental

entity reviews an application for a license to operate a

collection and disposal facility? The list would include.

but not necessarily be limited to. the following:

(1) The licensee must meet those standards set by the

health department and ADEM that will he utilized to

review the license, if approved.

(2) The proposed collection and disposal application

must be in the best interests of the citizenry, taking into

account its health, safety, and welfare.

(3! The licensee must be able to adequately service a

designated or assigned area.

'4' The licensee must pay an annual license fee and a

permit fee, if required, and must post a performance

bend in an amount to be set by the governmental entity.

‘9! The license [sic] must agree to function with pre-

determined rate schedules set by the licensing authority.

(6) Upon approval of a license application, the licensee

must meet the standards set by the health department

and ADEM in order to obtain permits from them.

‘

' The licensee must meet all health department

sanitary regulations for collection of solid wastes,

8a

(8) All disposal plans must comport with ADEM dis-

posal regulations.

As can be seen from the foregoing, the Act is far from

standardless and, in fact, gives local and county govern-

ments much guidance in formulating reasonable stand-

ards to utilize in the licensing process established by the

Act. Furthermore, when this Court construes a statute

that is intended to protect the public health, “ ‘great

latitude should be allowed to the legislature in determin-

ing the character of such laws, and how, when, and by

whom, in their practical administration, they should be

applied.’ State v. Clayton, 492 So.2d 665, 667 (Ala.Cr.

App. 1986), quoting Parke v. Bradley, 204 Ala. 455, 456,

86 So. 28 (1920). Because one of the purposes of the Act

is to protect the public health, the legislature, in select-

ing a method to guide the counties in policing this public

interest, will be accorded great latitude by this Court.

We therefore find that the Act is not unconstitutional,

and we conclude that the judgment of the Court of Civil

Appeals on this point was in error.

The next issue raised by WCI relates to the method by

which the Commission disapproved its license after ini-

‘ally approving it. WCI argues that its due process

rights were violated when the Commission rescinded its

prior approval without a hearing. Procedural due process

ix not properly afforded when one’s life, liberty, or prop-

erty interests are affected without prior notice and an

opportunity for a hearing. Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 310-11, 70 S.Ct. 652,

656-57 (1950). It is interesting to note that in this case

WTI received the initial license without a hearing, but it

does not argue that that violated due process. If WCI’s

due process rights were violated by the subsequent revo-

cation of the license without a hearing, then certainly

the due process rights of the affected citizenry were vio-

lated when the license was first issued without a hearing.

9a

We agree with the Court of Civil Appeals in its conclu-

sion that WCI!’s due process rights were violated, but we

must further state that the original license should not

have been issued without notice and an opportunity for

a hearing.

As to WCI’s argument that the Commission lacked the

authority to approve or disapprove WCI’s application, we

find that it did not. It is clear from the Act that no waste

collection and disposal site, unless specifically excepted by

the Act, could legally operate without a license issued by

a county or other local governmental entity. Although

there are other approvals that must be obtained, unless

an agency is excepted, it cannot operate without approval

of the appropriate governmental agency. Accordingly, we

reverse the Court of Civil Appeals’ judgment as to this

issue,

Several weeks after the Commission rescinded approval

of the Greenbrier site, it adopted “License Requirements

for Sanitary Landfills.” * WCI argued that the Commis-

*In pertinent part, the license requirements read as follows:

“Section 5. Location Factors

“(a) A license shall not be approved by the County Commis-

sion unless a permit for the sanitary landfill has been issued by

the Alabama Department of Environmental Management.

“oe

“Section 7. Fees, License Renewal and Revocation

“(a) The applicant for a license to construct and operate a

sanitary landfill shall pay an application fee of $10,000 to the

County Commission to defray the costs of renewing such appli-

cation. Such fee shall accompany the application. Provided

that the County shall not be required to pay an application

fee for any sanitary landfill that it owns or operates.

“(b) The owner or operator of an approved sanitary land-

fill shall apply for license renewal annually. Provided, however,

that the County shall not be required to reapply for any sani-

tary landfill that it owns or operates. The annual renewal

fee shall be equal to 10% of the vross receipts of the landfill

during the previous vear, but shall not exceed a maximum of

$50,000 per year. At the time of renewal application, the Com-

l0a

sion was without auti.crity to co so, and that, even if it

had authority to do so, those requirements were arbitrary

and capricious.

On that point, the Court of Civil Appeals stated:

“The county’s requirements also provide that a

license ‘shall not be approved... unless a permit for

the sanitary landfill has been issued by |ADEM].’

$5, paragraph (a), p. 6, ‘License Requirements for

Sanitary Landfills.’ Under this provision, WCI and

companies like it would be required to select a site

that fulfills ADEM’s requirements and complete the

permitting process before knowing whether they

could obtain the county’s approval for the site. Dis-

approval of a site at that stage would inflict substan-

tial economic harm upon such companies. In addi-

tion, the county’s $10,000 application fee, over six

times greater than the permit fee required by

ADEM, is at least arbitrary and capricious, if not

prohibitive.”

— So.2d at ——.

We disagree. The language of the license requirements

merely presumes the dual role between the county and

ADEM as set forth in the Act. The Act itself does not

specify a schedule that applicants must follow when seek-

ing approval of a collection and disposal site. Thus, the

Commission did not exceed its authority by requiring

that, prior to its licensing of a site, an ADEM permit

must be procured. Whether approval first comes from

the county or from ADEM, it is a virtual certainty that

any applicant would suffer some economic harm if the

second agency should nullify the first agency’s approval.

Such is the risk that accompanies the permit process es-

tablished by the Act.

mission shall review the performance record of the owner or

operator during the previous vear and may deny the license

renewal based upon poor performance, including any violation

of the Alabama Solid Waste Management Regulations.”

lla

Finally, there was no evidence offered that would lend

credence to a conclusion that permit fees as established

by the Commission were “at least arbitrary and capri-

cious, if not prohibitive.” Such a determination could be

made only by examining the total annual revenues ex-

pected to be derived by WCI from the operation of the

landfill site. It is conceivable that this application fee

would, indeed, be found to be reasonable should such an

examination take place. Without such evidence before

this Court, we will not decide whether the fee was ar-

bitrary or capricious. Chatman v. City of Prichard, 431

So.2d 532, 533 (Ala. 1983). Accordingly, we reverse the

judgment of the Court of Civil Appeals with regard to

the licensing requirements adopted by the Commission,

and we conclude that they are not inconsistent with the

Act.

The judgment of the Court of Civil Appeals is re-

versed, and the cause is remanded.

REVERSED AND REMANDED.

Hornsby, C. J., and Maddox, Almon, Shores, Adams,

‘jouston, and Steagall, JJ., concur.

Jones, J., not sitting.

124

APPENDIX B

THE STATE OF ALABAMA—

JUDICIAL DEPARTMENT

THE COURT OF CIVIL APPEALS

OCTOBER TERM 1988-89

Civ. 6718

WASTE CONTRACTORS, INC.

We

STATE OF ALABAMA, LAUDERDALE COUNTY

Appeal from Lauderdale Circuit Court

INGRAM, Judge

Waste Contractors, Inc. (WCI) instituted this action

against Lauderdale County after the county commission

revoked its prior approval of a site for a solid waste dis-

posal facility proposed by WCI (the Greenbrier site).

The complaint was subsequently amended to add a con-

stitutional issue, of which the attorney general was prop-

erly notified. The state then joined in the proceeding.

After the trial court granted summary judgment for the

county and state, WCI timely perfected this appeal.

WCI challenges a portion of Alabama’s Solid Waste

Disposal Act, $ 22-27-1, et seq. Ala. Code 1975 (1984

tepl. Vol.i, contending that § 22-27-5(b), which author-

izes local governing bodies to “approve or disapprove

disposal sites,” delegates that power to local authorities

13a

in an unconstitutional. manner. WCI argues that legis-

lation which delegates power to a county commission must

contain substantive standards and procedural safeguards

defining and limiting the exercise of such power and

that the Solid Waste Disposal Act is standardless and

boundless as to the approval or disapproval of. sites.

WCI also argues that the county’s exercise of its dis-

approval power over the Greenbrier site was improper.

In addition, WCI contends that, while the Alabama De-

partment of Environmental Management (ADEM) is

authorized to promulgate regulations pertaining to the

site of a sanitary landfill, the county is precluded from

doing so.

WCI began searching for a site in Lauderdale County

for its proposed sanitary landfill in 1985. Four locations

were considered, with the Greenbrier site being the one

ultimately selected. The county itself had also considered

that site for a landfill. In April 1987, the county com-

mission unanimously adopted a resolution authorizing

WCI to establish and operate a sanitary landfill at the

Greenbrier site, provided all of ADEM’s rules and regu-

lations were met, and establishing an operational fee of

$20,000 or one percent of revenues. In May, the com-

mission unanimously approved an extension of the site.

Then, in June, without notice to WCI and without any

discussion, the Commission voted to disapprove the Green-

brier site. At that point, WCI had expended approxi-

mately $80,000 in the purchase of option contracts on

land and the examination and analysis of potential sites.

During the investigation of the Greenbrier site, WCI

began discussions with ADEM regarding a permit to

operate a landfill at that site. WCI filed its formal per-

mit application with ADEM in July 1987, which it con-

tinues to actively pursue.

The disputed provision of the Solid Waste Disposal

Act states as follows:

l4a

“(b) Private or corporate agencies.—Individuals,

corporations, partnerships or other agencies engaging

in the collection and disposal of solid wastes are

subject to this article. Governing bodies may assign

territories, approve or disapprove disposal sites, with

the concurrence of the health department, and shall

establish and collect annual license fees from such

firms and set rate schedules if a service fee is

charged. In addition to any other approvals which

are necessary for any contract between private or

corporate agencies and governmental entities for the

disposal of solid wastes, approval of the department

[4 DEM] shall be obtained.” (Emphasis added.)

$ 22-27-5(b), Ala. Code 1975 (1984 Repl. Vol.).

The act further grants to ADEM regulatory power

over all aspects of solid waste disposal.

“With regard to the disposal of solid wastes, the

department |ADEM] shall exercise such regulatory

control over the management of solid wastes as may

be necessary to enforce the requirements of the

department, and the department may adopt such

rules and regulations as may be needed to meet the

requirements of this article.’ (Emphasis added. }

S$ 22-27-7, Ala. Code 1975 (1984 Repl. Vol.).

ADEM has enacted comprehensive Solid Waste Man-

agement Reguiations in order to exercise its regulatory

control. Included therein are Solid Waste Disposal Siting

Standards ($ 4-150) and requirements for notice and a

public hearing on the merits of permit applications

($$ 4-182 and -83). The regulations do not, however,

include guidelines to be applied by a county commission

in approving or disapproving a site.

The Alabama legislature may delegate to counties and

cities certain powers relating to local governments. Wal-

l5a

lace v. Board of Education of Montgomery County, 280

Ala. 635, 197 So. 2d 428 (1967).

“The legislature cannot delegate its power to make

a law, but it can make a law to delegate a power to

determine some fact or state of things upon which

the law makes or intends to make its own action

depend.”

Alabama Dairy Commission v. Food Giant, Inc., 357 So.

2d 139, 141 (Ala. 1978), quoting Norten v. Lusk, 248

Ala. 110, 122, 26 So. 2d 849, 859 (1946). We must then

inquire whether the legislative authority has provided

standards and safeguards along with the delegation of

powers. Bailey v. Shelby County, 507 So. 2d 438 (Ala.

1987).

Section 22-27-5(b) essentially allows the counties in

our state to have input regarding the location of waste

disposal facilities within their boundaries; however, no

standards to guide the local authorities or safeguards

against arbitrary action are present anywhere within the

Solid Waste Disposal Act.

The disputed portion of § 22-27-5(b) is similar to a

provision in the Minus Act as originally drafted in 1981

($ 22-30-5.1, Ala. Code 1975), which required a standard-

less legislative approval of any commercial hazardous

waste ts iment or disposal site if ADEM granted a per-

mit to such facility. That provision was declared uncon-

stitutional by the United States District Court for the

Middle District of Alabama in Browning-Ferris Indus-

tries of Alabama, Inc. v. Peques, No. 85-H-228-N (M.D.

Ala. August 4, 1987). The case was then before the

United States District Court for the second time. The

trial judge had initially ruled that a determination re-

garding the validity of $ 22-30-5.1 was not ripe for adju-

dication. The Eleventh Circuit reversed and remanded

the case for consideration of the facial challenges to the

Minus Act. Browning-Ferris Industries of Alabama, Inc.

l6a

v. Alabama Department of Environmental Management,

799 F.2d 1473 (11th Cir. 1986). In ruling on the merits

of the case, the trial judge wrote as follows:

“The constitutional vice of the Minus Act is the

complete absence of standards. There simply are no

guidelines spelled out in the provision that the legis-

lature must individually approve any facility devoted

solely to the storage of hazardous waste. In other

words, the statute does not provide the faintest clue

as to what an applicant should do or refrain from

doing in order to secure legislative approval. If one

applicant for a license is preferred over another as

the result of a political favor or for no logical reason

at all, the disappointed applicant is without redress

under the Minus Act because the discretion of the

Legislature is standardless and boundless.”

Browning-Ferris Industries of Alabama, Inc. v. Peques,

supra, at 4-5.

Thereafter, $ 22-30-5.1 was amended in 1988 to in-

clude a designation of criteria to be evaluated in deter-

mining whether to recommend approval of proposed sites

for the disposal or treatment of hazardous wastes. We

believe that similar criteria should be formulated to guide

local authorities in the exercise of the power granted to

them in § 22-27-5(b), particularly the power to disap-

prove sites,

The case before us is illustrative of the problems

created by such a standardless and boundless statute.

| A county’s approval of a site will ultimately be reviewed

by ADEM to insure that a disposal facility is not in-

| jurious to the environment or citizenry of the area. On

| the other hand, nothing in the statute or ADEM’s regu-

lations prevents the disapproval of a site in an arbitrary

and capricious manner. Here, because of the arbitrary

nature of the approval process, WCI expended large

amounts of time and money locating a site for a sanitary

17a

landfill and received approval of the site from the county

commission, only to suffer disapproval of the. site

shortly thereafter.

Not only does that kind of power adversely affect com-

panies like WCI, but it has the potential for negative

impact upon our state. Garbage and trash generated

by our citizens must be disposed of somewhere, yet there

are very few localities in which most of the citizens

willingly accept the establishment of a landfill. The com-

plex technical regulations and necessary equipment make

waste disposal increasingly expensive, to the extent that

it may no longer be practical or cost effective for dis-

posal facilities to be located on a county-by-county basis.

Although the county in which a solid waste disposal

facility is to be located should have input into the decision

as to its site, the extensive ADEM regulations relating

to site selection are meaningless if the site determina-

tion is subject, in the final analysis, to the disapproval

of a county commission with no standards, rules, or

guidelines to determine the basis for its decision. Be-

cause the grant of power to local governing bodies to

approve or disapprove sites that presently exists in

* 22-27-5(b) is totally devoid of standards to regulate

the exercise of that power, we find that portion of the

Solid Waste Disposal Act to be unconstitutional.

We emphasize that not all of the powers granted to

local authorities by § 22-27-5'b) are unconstitutional.

It is the lack of standards and safeguards governing

local approval or disapproval of waste disposal sites that

makes the provision invalid.

We now turn to WCI’s claim that the action of the

county at its June 1987 meeting violated procedural due

process. The first element of due process requires “notice

reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action

and afford them an opportunity to present their objec-

laa

tions.” Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 314 (1950). “Proper notice is a jurisdic-

tional prerequisite to valid agency action.” Dirt, line. r.

Mobile County Commission, 739 F.2d 1562, 1566 (11th

Cir. 1984). There was a total failure of notice to WCI

that the commission was to review its prior approval of

the Greenbrier site at the June meeting. “The second

element of due process is the right to a hearing by an

impartial tribunal.” Dirt, Inc., supra, at 1566. The com-

mission disapproved the site without discussion, so there

obviously was no hearing on that issue. WCI was de-

prived of both elements of due process, and the county

commission was, therefore, without authority to take

the action it did.

We note, even though not presented to us as an issue

in this case, that the action of the commission at its

April and May meetings was also taken without notice

to or an opportunity to be heard by the citizens of the

affected area.

We also must address the question of exactly what

power is granted to local governing bodies by the Solid

Waste Disposal Act. Clearly, ADEM was granted the

authority in £ 22-27-7 to adopt the rules and regulations

necessary to carry out its responsibilities under the act.

Giving administrative agencies the power to make rules

and regulations is a proper delegation of the legislative

power of the state. Bailey v. Shelby County, supra.

The county, on the other hand, is granted limited

authority in § 22-27-5'bi. It may (1) assign territories,

(2) approve or disapprove disposal sites, with the con-

currence of ADEM, and (3) establish and collect annual

license fees.

Shortly before WCI filed its lawsuit in the instant case,

the county adopted “License Requirements for Sanitary

Landfills,” which contains siting standards and require-

ments for public hearings duplicative of ADEM’s. The

19a

county's license requirements also call for an application

fee of $10,000 and a licensing fee of $50,000 or one per-

cent of revenues. In contrast, ADEM’s permit application

fee is $1,500.

The county argues that its license requirements are not

before this court. We disagree and will consider those

requirements based on the rationale of Browning-Ferris

Industries of Alabama, Inc. v. Alabama De par’ment of

Environmental Management, supra. The reversal of the

trial court’s initial ruling was based primarily on “the

hardship to the parties of withholding court considera-

tion.” Abbott Laboratories v. Gardner, 387 U.S. 136,

149 (1967). The Eleventh Circuit found that requiring

Browning-Ferris to proceed with its permit application

without knowing whether the Minus Act was valid would

impose a substantial potential hardship on the company.

Even though the county adopted its “License Require-

ments for Sanitary Landfills” after its approval-disap-

proval of WCI’s application, we think that these require-

ments must be tested here not only because they were

adopted before suit was filed, but because they are viable

matters which can have considerable effect on WCI's pur-

suit of its application for site approval.

The county's requirements are based upon the incorrect

premise that it has the authority to “require licenses for

disposal of solid wastes . . . pursuant to Section 22-27-

o(bi.” Paragraph (a), p. 1, “License Requirements for

Sanitary Landfills.” Counties are merely authorized to

collect a license fee as compensation for any burden to

the county that the operation of a solid waste facility

entails. The county’s requirements also provide that a

license “shall not be approved .. . unless a permit for

the sanitary landfill has been issued by |ADEM}].” § 5,

paragraph ‘a', p. 6, “License Requirements for Sani-

tary Landfills.” Under this provision, WCI and com-

panies like it would be required to select a site that ful-

fills ADEM’s requirements and complete the permitting

20a

process before knowing whether they could obtain the

county's approval for the site. Disapproval of a site at

that stage would inflict substantial economic harm upon

such companies. In addition, the county's $10,000 appli-

cation fee, over six times greater than the permit fee

required by ADEM, is at least arbitrary and capricious,

if not prohibitive.

Our legislature has granted to ADEM the responsi-

bility of developing and enforcing the regulation of solid

waste disposal on a uniform basis throughout the state.

An individual county cannot take upon itself the au-

thority to regulate the environmental standards imposed

upon a proposed site. The county's license requirements

clearly exceed the proper exercise of its statutory power.

In view of our holding that the standardless grant of

power to local authorities in § 2-2-27-5(b) [sie] to ap-

prove or disapprove disposal sites is unconstitutional, we

find that the county’s June 1987 recission of its contract

with WCI is null and void.

The trial court’s judgment in this case is reversed,

and the cause is remanded to the trial court for any

further proceedings consistent with this opinion.

In view of the foregoing, other issues raised by WCI

are pretermitted.

REVERSED AND REMANDED.

Bradley, P.J., and Holmes, J., concur.

2la

APPENDIX C

IN THE CIRCUIT COURT

THE STATE OF ALABAMA

COUNTY OF LAUDERDALE

Case No. CV-S7-460

WASTE CONTRACTORS, PLAINTIFF,

Ve

LAUDERDALE COUNTY, DEFENDANT.

SUMMARY JUDGMENT

THIS MATTER coming before the Court on Motion

for Summary Judgment, filed by defendant Lauderdale

County, and the Court having considered al) evidence

properly before the Court offered in support of, and in

opposition to, said Motion for Summary Judgment, it is

CONSIDERED, ORDERED and ADJUDGED as fol-

lows:

1. Plaintiff's prayer that the June 22, 1987 action of

the Lauderdale County Commission in rescinding its prior

permit granted to Waste Management be declared of no

force and effect, is hereby denied.

2. Plaintiff's prayer that defendant Lauderdale County

be enjoined from enforcing or effectuating its rescission

of June 22, 1987, is hereby denied.

3. Plaintiff’s prayer that defendant Lauderdale County

be enjoined from enforcing or attempting to enforce the

22a

“license requirements for sanitary landfills’, adopted by

the Lauderdale County Commission on the 10th day of

August, 1987, is hereby denied.

4. Plaintiff's prayer that the “license requirements for

sanitary landfills” be declared null, void and of no force

and effect is hereby denied.

5. Plaintiff's prayer that this Court determine that

certain action of the Lauderdale County Commission per-

manently delegated all further administrative and regu-

latory authority to the Alabama Department of Environ-

mental Management is hereby denied.

6. The Court specifically FINDS, DECLARES, and

ADJUDGES that defendant Lauderdale County Commis-

sion acted reasonably and with legal authority in denying

a license to operate a sanitary landfill to plaintiff by the

Commission’s action on June 22, 1987.

Even if the prior action by the Lauderdale County

Commission on April 4, 1987, and May 11, 1987, can be

conidered a license; for what length of time was such

license granted? A local governing body surely must be

allowed, under the circumstances at hand, to rescind its

prior actions if it appears the health and general welfare

of its citizens would be well served. To hold otherwise

would prevent a governing body from acting in the best

interests of its citizens when new or different informa-

tion arises from time to time, and would subject present

and future citizens to the effects and results of certain

governmental action even though such action may have

been improvidently taken initially.

7. The Court further FINDS, DECLARES, and AD-

JUDGES that defendant Lauderdale County Commission

has the authority under Alabama law to approve or dis-

approve disposal sites for sanitary landfills, and without

such approval and licensing by the Lauderdale County

Commission, plaintiff Waste Contractors has no authority

23a

to construct nor operate a sanitary landfill in Lauderdale

County, Alabama.

8. All other affirmative relief sought by plaintiff is

hereby denied.

9. That a copy of this order be forwarded by the

Clerk to the Alabama Department of Environmental Man-

agement, Montgomery, Alabama.

DONE and ORDERED at Florence, Alabama, this the

29th day of April, 1988.

‘s/ Edward Tease

Circuit Judge

xe: Hon. Robert Gonce

Hon. Thomas Wells, Jr.

Hon. Bart Slawson

Alabama Department of Environmental Management

24a

IN THE CIRCUIT COURT

THE STATE OF ALABAMA

COUNTY OF LAUDERDALE

Case No. CV-87-460

WASTE CONTRACTORS, INC., PLAINTIFF,

V.

LAUDERDALE COUNTY, DEFENDANT.

ORDER

THIS CAUSE coming on to be heard on the following:

1. Motion by Plaintiff to Alter or Amend the Sum-

mary Judgment entered by the Court on April 29, 1988.

2. Motion for Summary Judgment by Plaintiff under

Counts eight, nine and ten of its amended complaint.

3. Motion by Defendant Lauderdale County to Strike

Plaintiff’s amended complaint adding Counts eight, nine

and ten.

4. Motion for Summary Judgment by State of Ala-

bama.

The Court having considered the pleadings, the oral

argument of attorneys of record, and the briefs submitted

by the respective parties, it is

CONSIDERED, ORDERED and ADJUDGED as fol-

lows:

1. Defendant Lauderdale County’s Motion to Strike is

hereby denied.

25a

2. In response to Plaintiff’s Motion to Alter or Amend

the Summary Judgment entered April 29, 1988, the

Court hereby declares that said Summary Judgment did

not address the additional Counts eight, nine and ten

embraced in Plaintiff's amended complaint. Those counts

remain before the Court and are properly addressed in

the Motions for Summary Judgment now pending by

Plaintiff Waste Management and the State of Alabama.

3. Motion for Summary Judgment by Plaintiff Waste

Management under Counts Eight, Nine and Ten of the

amended complaint is hereby denied.

4. All parties agree to submit the Motion for Sum-

mary Judgment of the State of Alabama without fur-

ther setting or hearing. The State’s Motion for Summary

Judgment with respect to the grounds of unclean hands,

laches and estoppel is hereby denied.

The Motion for Summary Judgment of the State of

Alabama with respect to the presumption of constitution-

ality is hereby granted. The Court hereby ADJUDGES

and DECLARES Section 22-27-5(b) of the Code of Ala-

bama, 1975 and its application to the facts presented in

this cause to be valid and not violative of the Consti-

tution of the United States or the Constitution of the

State of Alabama.

5. Costs of this action hereby taxed to Plaintiff.

DONE and ORDERED at Florence, Alabama, this the

10th day of June, 1988.

‘s/ Edward Tease

Circuit Judge

xc: Hon. Thomas Wells

Hon. Robert Gonce

Hon. Ray Vaughan

Hon. Bart Slawson

26a

APPENDIX D

OFFICE OF

CLERK OF THE SUPREME COURT

STATE OF ALABAMA

MONTGOMERY

MAILING ADDRESS: TELEPHONE: 261-4609

P.O. Box 157

Montgomery, Alabama 36101

Re:

88-557 - Ex parte: Lauderdale County

88-583 - Ex parte: State of Alabama

PETITIONS FOR WRIT OF CERTIORARI TO THE

COURT OF CIVIL APPEALS

(Re: Waste Contractors, Inc., Appellant vs. State of Ala-

bama, Lauderdale County, Appellee)

You are hereby notified that the following indicated

action was taken in the above cause by the Supreme

Court today:

—— Appeal docketed. Future correspondence should re-

fer to the above number.

Court Reporter granted additional time to file re-

porter’s transcript to and including

—— Clerk Register granted additional time to file clerk’s

record ‘record on appeal to and including

—— Appell granted 7 additional days to file briefs to

and including

—— Appellant(s) granted 7 additional days to file reply

briefs to and including

—— Record on Appeal filed

—— Appendix Filed

27a

—— Submitted on Briefs

—— Petition for Writ of Certiorari denied. No opinion.

xxxx Application for rehearing overruled. No opinion

written on rehearing.

Per Curiam—Hornsby, CJ., Maddox, Almon, Shores,

Adams, Houston, Steagall and Kennedy, JJ., concur.

—— Permission to file amicus curiae brief granted

/s/ Robert G. Esdale

4/6/90 ROBERT G. ESDALE, Clerk

bsa Supreme Court of Alabama