Petition for Writ of Certiorari — Individuals for Responsible Government, Inc. v. Washoe County
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Supreme Court, U.S.
rT." Ps
97-269 AUG 1 1997
IN THE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit
Nevada Corporation; JANICE BUSE;
HILARY BURSON; JUNE LINK, individuals,
No.
Petitioners,
VS.
WASHOE COUNTY, by and through
the Board of County Commissioners of
the County of Washoe; DIANNE CORNWALL,
Chairman; LARRY BECK, Vice Chairman;
GENE McDOWELL; STEVE BRADHURST;
INDEPENDENT SANITATION CO., INC.,
A Nevada corporation,
Respondents.
PETITION FOR WRIT OF CERTIORARI FROM
THE COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
MARC PICKER, ESQ.
ZEH, POLAHA, SPOO, HEARNE & PICKER
575 Forest St., Suite 200
Reno, Nevada 89509
702/323-5700
Attorney for Petitioner
(eens ee ee
QUESTIONS PRESENTED
l. WHETHER THE COURT OF APPEALS ERRED IN
FINDING A LACK OF STANDING OF INDIVIDUALS
FOR RESPONSIBLE GOVERNMENT, INC.
2 WHETHER THE CIRCUIT COURT FAILED TO
PROPERLY ADDRESS THE MANDATORY TRASH
COLLECTION ORDINANCE AND ITS COMPANION
FRANCHISE AGREEMENT VIOLATES THE
COMMERCE CLAUSE OF THE UNITED STATES
CONSTITUTION. |
3. WHETHER THE CIRCUIT COURT ERRED IN
FINDING THAT THE TAKINGS CLAUSE WAS NOT
VIOLATED BY THE MANDATORY RECYCLING FEE
CHARGED.
4. WHETHER THE CIRCUIT COURT ERRED IN FAILING
TO FIND THAT THE WASHOE COUNTY ORDINANCE
FAILS THE THREE-PART POLICE POWERS TEST.
TABLE OF CONTENTS
QUESTIONS PRESENTED
TABLE OF AUTHORITIES
<6 4. be ea oe ill
to ree ee 2
Pts gt tr eer a ae 3
CONSTITUTIONAL AND STATUTORY PROVISIONS .... 3
INVOLVED
SSALEOEENT OF TH CARE ow +s suk ene eee eee eee 3
REASONS FOR GRANTING Re EE 65 Aa ee 8
CKPRAARON 2 oo tne s bien se eee eee 26
Appendix A Order of the United States District Court for the
District of Nevada
Appendix B_ Opinion of the United States Court of Appeals for
the Ninth Circuit
Appendix C _ Plainuff Individuals for Responsible Government,
Inc.’s Cross-Motion for Summary Judgment
Appendix D Plaintiffs’ Memorandum of Points ana Authorities in
Opposition to Defendants’ Motions for Summary
Judgment and Supporting Plaintiffs’ Cross-Motion
for Summary Judgment
li
ee ae
| Appendix E
Appendix F
Appendix G
Appendix H
Affidavit of Darrel Reed in Support of Opposition to
Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs’ Cross-Motion for Summary
Judgment
Affidavit of Clara Fells in Support of Opposition to
Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs’ Cross-Motion for Summary
Judgment
Affidavit of Janice Buse in Support of Opposition to
Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs’ Cross-Motion for Summary
Judgment
Pertinent Statutes and Ordinances
iil
CASES PAGE
United States
C&A Carbone, Inc., v. Town of Clarkstown, . 15,17,19,20,21,26
511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 349 (1994)
City of Philadelphia v. New Jersey, ............0000.% 19
437 U.S. 617, 98 S.Ct. 2531 (1978)
Country Foods, Inc. v. Board of Educ. of Anchorage ..... 20
Sch. Dist., 952 F.2d 1173 (9 Cir. 1992)
CR Ve a NG ooo a a a pe ee ee 12
998 F.2d 1480 (9" Cir. 1992)
Guam Society of Obstetricians and Gynecologists v. ADA ... 13
100 F.3d 691 (9" Cir. 1996)
Hunt v. Washington State Apple Advertising Comm’n, ... 10,13
432 U.S. 333 (1977)
Individuals for Responsible Government, Inc. v. Washoe... . 2,9
County, 110 F.3d 699 (9" Cir. 1997)
Lake Mohave Boat Owners Ass’n v. National Park Service, .. 13
78 F.3d 1360 (9" Cir. 1994)
Lujan v. Defenders of Wildlife, .......cccccsseuces 10
504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)
POUR 9. Te te Aas Sa a Ee eae 18
477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986)
iV
a
Ree es Sa Bl Chee ee dG ak yt eet Cie vee 14
86 F.3d 155 (9® Cir. 1996)
NLRB v. Jones & Laughlin Steel Corp., ........... -. 17,26
301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937)
Oehrleins, Inc. v. Hennepin County ................. 15
922 F.Supp. 1396 (D.Minn. 1996)
Pacific Northwest Venison Producers v. Baker, .......... 18
20 F.3d 1008 (9" Cir. 1994)
Pane ¥. Es ok 5 eo ee 19
397 U.S. 137, 90 S.Ct.844, 25 L.Ed.2d 174 (1970)
United Food & Commercial Workers v. Brown Group, .... . 10
116 S.Ct. 1529 (1996)
Waste Management of Pennsylvania, Inc. v. Shinn, ....... 21
938 F.Supp. 1243 (D.N.J. 1996)
| Statutes/Codified Laws
| aE cnt ME EERE AES oe Prey 3,25
| TE PMD ss 6 ka ee hee ee ee eee 3
| ase hisinss a eee SECTOR. 3,23
| Washoe County Ordinance 838 .................... 3,7
Washoe County Ordinance 848
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit
Nevada Corporation; JANICE BUSE;
HILARY BURSON; JUNE LINK, individuals,
Petitioners,
VS.
WASHOE COUNTY, by and through
the Board of County Commissioners of
the County of Washoe; DIANNE CORNWALL,
Chairman; LARRY BECK, Vice Chairman;
GENE McDOWELL; STEVE BRADHURST;
INDEPENDENT SANITATION CO., INC.,
A Nevada corporation,
Respondents.
PETITION FOR WRIT OF CERTIORARI FROM
THE COURT OF APPEALS FOR THE NINTH CIRCUIT
TO THE HONORABLE PRESIDING JUSTICE AND
HONORABLE ASSOCIATE JUSTICES OF THE UNITED
STATES SUPREME COURT:
Petitioners INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit Nevada Corporation;
JANICE BUSE; HILARY BURSON; JUNE LINK, individuals,
hereby respectfully pray that a writ of certiorari issue to review the
judgment and Opinion of the United States Court of Appeals for
the Ninth Circuit affirming the decision of the United States
District Court for the District of Nevada to grant summary
judgment to the Respondents on the issue of constitutionality of
county ordinances governing mandatory garbage removal and fees
for the same.
OPINIONS BELOW
The unpublished Order of the United States District Court
for the District of Nevada appears in Appendix A to this petition.
The citation of the opinion of which review is sought in this Court
is 110 F.3d 699 (9" Cir. 1997). The Opinion appears in Appendix
B to this Petition.
JURISDICTION
The Opinion of the United States Court of Appeals for the
Ninth Circuit was filed April 1, 1997. The Order denying the
Motion for Rehearing and Suggestion of Appropriateness of
Rehearing En Banc was filed May 9, 1997.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Nevada Revised Statutes 244.187, 244.188, and 444.585
and Washoe County Ordinances 838 and 848 are attached as
Appendix H to this Petition.
STATEMENT OF FACTS
In April 1992, the Washoe County Commission amended
the Washoe County Code by adopting Ordinances 838 and 848
("Ordinances") to provide for mandatory collection of household
garbage from all residents in the unincorporated county. The
stated reason of County officials for imposing mandatory collection
was to eliminate or reduce illegal dumping in the unincorporated
portions of the County. The resultant main effects of the
Ordinances have been: (1) To eliminate freedom of choice for
county residents as to with whom they choose to do business, (2)
To increase the funds available to the County, (3) To create
additional financial burdens on the residents, (4) To create a
monopoly for Appellee Independent Sanitation, and (5) To result in
the seizure or impairment of their property.
The County purportedly enacted these Ordinances to
address the problem of increased dumping in the desert of trash and
garbage, but the County already has ordinances which prohibit the
dumping of trash, in addition to existing state and federal laws.
Citizens of Washoe County, including those who are members of
Petitioner INDIVIDUALS FOR RESPONSIBLE GOVERNMENT,
have attempted to assist the County in enforcing these anti-dumping
ordinances, but have received little cooperation or effort from the
County in doing so. Petitioner INDIVIDUALS FOR
RESPONSIBLE GOVERNMENT is a nonprofit Nevada
corporation formed by persons directly affected by the ordinances
in question for the purpose of addressing said ordinances and
bringing this chailenge. : | pur
In 1992, in response to citizen protests, an Illegal Dumping
Task Force was established by the Washoe County Commission
with the purpose of educating the public as to the need for proper
disposal of trash and garbage and to seek the assistance of the
public, law enforcement and health authorities and the judiciary to
enforce the anti-dumping ordinances and statutes. This Task Force
organized citizen watch programs to assist law enforcement and
health officials in apprehending those responsible for the illegal
dumping while its members met with law enforcement and judicial
officials to ensure that the efforts of private citizens to undertake a
significant role in eliminating or reducing illegal dumping would be
met with proper enforcement actions. The Task Force was assured
by both judicial and enforcement personnel that the full measure of
penalties provided by law would be sought in all cases of illegal
dumping. The actions and observations of private citizens working
in cooperation with the Task Force resulted in several persons
Ws
being apprehended, however, none of the individuals apprehended
“Teceived a fine exceeding one-quarter of the maximum imposed by
law.
The County showed limited interest in the enforcement of
its anti-dumping ordinances or the state laws on this matter. Illegal
dumps continue to proliferate within Washoe County. Few actions
have been prosecuted by County for the illegal dumping of trash,
and those few cited by the County in newspaper accounts only
highlight the continuing existence of the problem which the
contested Ordinances were supposed to cure.
Prior to the passage of the Ordinances, the citizens and
residents of Washoe County had no mandatory household pickup,
and the disposal of garbage was left to free and competitive market
forces and the initiative of the residents. Before the passage of
the first franchise for the County in 1967, citizens had the choice
of at least two services for the collection of their garbage and trash.
While a majority of the citizens chose to subscribe to a service
(which the County had chosen to limit to a monopoly in 1967),
approximately four thousand citizens declined to contract with
Respondent INDEPENDENT SANITATION. |
. eee
oe a
Residents of northern Washoe County took or take their
household garbage across state lines into California, for disposal in
the community of Susanville. This option was both more
convenient and cost effective, as northern Washoe County is
considerably closer to Susanville, California, than to the designated
Washoe County landfill in Lockwood, Nevada.
Appellants brought their action on July 21, 1994, in the
Second Judicial District Court of the State of Nevada in and for
Washoe County in the form of a Petition for Declaratory Relief,
seeking an order declaring unconstitutional the provisions of
Washoe County Ordinances 838 and 848. The matter was removed
to the United States District Court for the District of Nevada where
it was the subject of various motions and cross-motions for
summary judgment. United States Senior District Court Judge
Edward C. Reed decided the summary judgment motions in favor
of Respondents. Petitioners brought an appeal of the decision to
the Court of Appeals for the Ninth Circuit, which affirmed the
District Court’s decision after finding that the individual Petitioners
and INDIVIDUALS FOR RESPONSIBLE GOVERNMENT,
INC., lacked standing to sue under the “dormant commerce
clause.” The Ninth Circuit then affirmed the District Court's
remaining basis for its decision.
Petitioners thereafter filed a Motion for Rehearing and
Suggestion of Appropriateness of Rehearing En Banc on April 15,
1997. The motion was denied on May 9, 1997.
REASONS FOR GRANTING THE WRIT
1.
THE COURT OF APPEALS ERRED IN FINDING
A LACK OF STANDING OF INDIVIDUALS FOR
RESPONSIBLE GOVERNMENT, INC.
In its Opinion in this matter, the Court of Appeals for the
Ninth Circuit held that Petitioner INDIVIDUALS FOR
RESPONSIBLE GOVERNMENT, INC., did not have standing to
bring suit in this matter as the record in the case “does not specify
who are the members of Individuals for Responsible Government,
Inc., nor does it specify the organization’s purpose.” 110 F.3d at
— — Se ——
This is simply untrue and this holding overlooks the
pleadings and evidence reviewed in the district court’s decision,
including the Plaintiff's Memorandum of Points and Authorities in
Opposition to Defendants’ Motions for Summary Judgment and
Supporting Plaintiffs Cross-Motion for Summary Judgment,
wherein it is noted that IRG’s members consist of citizens of
Washoe County who have “attempted to assist the county in
enforcing these anti-dumping ordinances, but have received little
cooperation or effort from the County in doing so.” These
conclusions are based upon the uncontroverted statements contained
within the Affidavit of Petitioner Janice Buse In Support of
Plaintiff's Memorandum of Points and Authorities in Opposition to
Defendants’ Motions for Summary Iudgment and Supporting
Plaintiff's Cross-Motion for Summary Judgment. Additionally, it
must be noted, that neither of the Respondents argued in their
Motions for Summary Judgment that Petitioner IRG was an entity
without standing nor that its purposes and membership did not meet
the provisions of United Food and Commerciat Workers v. Brown
Group, 116 §.Ct. 1529, 1534 (1996) or Hunt v. Washington State
Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
In United Food and Commercial Workers v. Brown Group,
this Court delineated the basis upon which an association has
standing to bring suit on behalf of its members: When its members
would otherwise have standing to sue in their own right; when the
interests the association seeks to protect are germane to the
organization’s purpose; and when neither the claim asserted nor
relief requested requires participation of individual members in the
lawsuit. IRG meets each and every one of these requirements: Its
members clearly have standing, as the Ninth Circuit held; the
interests IRG seeks to protect are not only germane but almost the
sole purpose of the organization; and, the relief sought is that of
declaring the statutory scheme unconstitutional not for individual
monetary damages. See, 116 S.Ct. at 1534.
In addition, in Lujan v. Defenders of Wildlife, 504 U.S.
10
555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), this Court
addressed the “irreducible constitutional minimum of standing”
_ — a —
which requires that three elements be met:
First, the plaintiff must have suffered an “injury in
fact” — an invasion of a legally protected interest
which is (a) concrete and particularized, (citations
omitted); and (b) “actual or imminent, not
‘conjectural’ or hypothetical,’” (citations omitted).
Second, there must be a causal connection between
the injury and the conduct complained of — the
injury has to be “fairly ... trace[able] to the
challenged action of the defendant, and not ... th[{e]
result [of] the independent action of some third party
not before the court.” (Citations omitted) Third, it
must be “likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable
decision.” (Citations omitted)
504 U.S. at 560, 112 S.Ct. at 2136.
Again, IRG meets each of these criteria: The organization
through its individual members has in fact been harmed through the
imposition of mandatory garbage fees, legal actions for the
collections of such fees, fees for mandatory recycling and taking of
either the recyclable items and the members’ money through
mandatory fees. Second, the causal connection between the injury
1]
and the conduct complained of is obvious, clear and undisputed.
_ Finally, it is not only likely but.acertainty that the injury willbe. -
redressed and resolved if the mandatory garbage and recyclable
ordinances are struck down. Each of these elements has been
established through Petitioners’ pleadings in the lower court.
In addressing the issue of standing, the Ninth Circuit had
previously held that a union local has standing to sue on behalf of
its members where its Spanish-speaking members had standing
because they could claim injury due to the application of a unfair
labor policy, that the employees’ interest in the conditions of the
workplace was germane to the local’s purpose as a collective
bargaining agent for the employees and where the claim asserted
and relief requested do not require the participation of individual
members. Further, the union was only seeking injunctive relief
and not damages. See, Garcia v. Spun Steak Co,, 998 F.2d 1480
(9" Cir. 1992). This case is directly analogous to the situation in
this matter in that IRG is an association whose members could
claim injury (already determined by the Circuit’s Opinion), and
12
chosen members’ claims are germane to IRG’s purpose, that being
the representation of persons interested in the anti-dumping
oiiienis and the vin mendes trash collection ordinance.
Finally, IRG’s claims and relief do not require the participation of
individual members as the challenge to the ordinance affects all
citizens of Washoe County and not just the individual plaintiffs,
and the relief sought is to overturn the ordinance — not the
collection of damages.
In Lake Mohave Boat Owners Ass'n v. National Park
Service, 78 F.3d 1360 (9" Cir. 1994), the Ninth Circuit held that
association not to have standing pursuant to the requirements of
because the relief sought was in the form of damages which would
have had to have been determined on an individual basis with each
slip owner having to provide their own evidentiary proof.
Similarly, the Ninth Circuit granted standing to a non-profit
organization of nurses in Guam Society of Obsteincians and
Gynecologists vy. ADA, 100 F.3d 691 (9" Cir. 1996), despite the
13
nurses not being the direct target of the law in question. The
appellate court therein recognized the organization’s standing based
upon the defendant’s failure to demonstrate the nurses eta not be
subject to prosecution for assisting a licensed physician violating
the law even though the nurse would not be directly taking the
illegal actions. Again, IRG’s situation is similar as it sought to
challenge this statute which made its members’ actions illegal and
required them to pay for garbage collection whether it was used or
not.
In a most recent decision addressing the question of
organizational standing, the Ninth Circuit held that where a district
court assumes arguendo that plaintiffs had sufficiently pleaded
sufficient injury to satisfy the question of standing, the circuit court
will also do so. In Medina v. Clinton, 86 F.3d 155 (9" Cir. 1996),
it was held that where the remedy sought would not redress the
alleged injury of the plaintiffs, then standing did not exist. In
IRG’s case, the remedy sought goes to the very heart of the injury
alleged.
14
On the subject of standing under the dormant Commerce
Clause provisions, other courts have applied this Court’s opinion in
C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389,
114 §.Ct. 1677, 1681-1682, 128 L.Ed.2d 399 (1994), to reach the
question of heightened scrutiny in reviewing such matters. In Ben
Oehrleins, Inc. v. Hennepin County, 922 F.Supp. 1396 (D.Minn.
1996), the district court noted that the plaintiff therein had standing
to raise a Commerce Clause claim after it showed it had been
involved in the business of shipping waste and that several
plaintiffs had been fined. Analogously, Petitioners have been the
subject of enforcement actions to impose the fees in question and
were and are effected by the ongoing nature of the ordinance and
associated fees.
In order to show standing under the dormant Commerce
Clause provisions, a plaintiff must show that he has suffered an
injury in fact caused by the challenged activity which can be
redressed by the court, and the must show that he falls within the
zone of interest sought to be protected by the Commerce Clause.
15
Petitioner IRG, its members, and the individual Petitioners have
met these burdens. They are injured in fact and the activity can be
redressed by this Court (see above), and they fall within the zone
of interest due to the effect of the mandatory garbage and recycling
provisions of the ordinance. Petitioners must pay for such
services, even if they never utilize such services. Petitioners are
being “taxed” for a service that they had previously provided at a
cheaper rate across the state line into California. They are being
prevented from utilizing interstate commerce by these mandatory
fees.
The Circuit Court failed not only to follow the established
case law of this Court, it failed to follow its own prior decisions.
Based upon all of the above, the organization and the individual
Petitioners should have been found to have sufficiently met the
standing requirements.
2.
THE CIRCUIT COURT FAILED TO PROPERLY ADDRESS
THE MANDATORY TRASH COLLECTION ORDINANCE
AND ITS COMPANION FRANCHISE AGREEMENT
16
VIOLATES THE COMMERCE CLAUSE OF THE UNITED
STATES CONSTITUTION
It is well settled that actions are within the domain
of the Commerce Clause if they burden interstate
~—com-=ierce or Hnpede its free flow. _NLRBv. Jones. _ 4
& | ighlin Steel Corp., 301 U.S. 1, 31, 57 S.Ct.
615, 81 L.Ed. 893 (1937).
C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389,
114 §.Ct. 1677, 1681-1682, 128 L.Ed.2d 399 (1994).
The collection, transportation and disposal of
garbage is beyond doubt an act of commerce. ...
[W]hat makes garbage a profitable business is not its
own worth, but the fact that its possessor must pay
to get rid of it. In other words, the article of
commerce is not so much the solid waste itself, but
rather the service of processing and disposing of it.
Carbone, 114 S.Ct. at 1682.
Restrictions on the disposal of trash do reach interstate
commerce. The effect of these ordinances is to reserve an area of
commerce for a favored local operator. This Court has already
spoken as to the scrutiny with which such ordinances should be
reviewed. Carbone, supra, at 1683.
Discrimination against interstate commerce is per se
invalid, save in the narrow class of cases in which
17
the municipality can demonstrate that, under
rigorous scrutiny, that it has no other means to
advance a legitimate local interest.
Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440. 91 L.Ed.2d 110
——~ (1986). . —
As held in Pacific Northwest Venison Producers v. Baker,
20 F.3d 1008 (9th Cir. 1994), “the state has the burden of
establishing that a legitimate state interest unrelated to economic
protectionism is served by the regulations that could not be served
as well by less discriminatory alternatives.” (Citing Maine v.
Taylor, 477 U.S. at 138.)
The IRG/Washoe County matter presents a situation very
similar to that presented in Carbone, in which a single favored
local operator is granted an exclusive market, in which no other
party, local or interstate may compete. Carbone, supra, at 1683.
Such an ordinance deprives both in-state and out-of-state businesses
of access to the local market, and denies freedom of choice and
contract to the citizens resident in Washoe County.
The purported purpose of the contested Ordinances and the
18
granting of a monopoly franchise could have been achieved through
the less intrusive avenue of enforcement of existing regulations,
ordinances and statutes. This Court has stated an action is within
the scope of the Commerce Clause if it burdens interstate
commerce or impedes its flow. This Court has held that two lines
of analysis may be applied to determine whether an action violates
the Commerce Clause:
[F]irst, the action discriminates against interstate
commerce, City of Philadelphia v. New Jersey, 437
U.S. 617, 625, 98 S.Ct. 2531, 2535 (1978); and
second the action imposes a burden that is “clearly
excessive in relation to the putative local benefits.”
Pike v. Bruce Church, 397 U.S. 137, 90 S.Ct. 844,
25 L.Ed.2d 174 (1970)
Carbone, supra, at 1682.
In Carbone, this Court held that the township had a variety
of nondiscriminatory alternatives for resolving health and
environmental problems that should have been exhausted prior to
creating a monopoly for the handling of trash. “The most obvious
would be uniform safety regulations enacted without the object to
discriminate. These regulations would ensure that competitors like
19
BE TOES. Pen ©
Carbone do not underprice the market by cutting corners.”
Carbone, supra, at 1683.
In light of the failure of the mandatory garbage collection
ordinances and monopoly franchise to achieve the stated goals,
there is no adequate justification for the elimination of competition
and the interference with personal freedoms.
In its Opinion, the Ninth Circuit failed to address this legal
question, holding that the Petitioners lack standing to raise this
challenge. The panel failed to properly consider the Petitioners’
standing, as seen above, and now the Court must address both the
legal questions raised in C&A Carbone, Inc., v. Town of
Clarkstown, N.Y., 511 U.S. 383 (1994). Additionally, the
position of Petitioners is most closely aligned to that in Big
Country Foods, Inc. v. Board of Educ, Of the Anchorage Sch.
~
Dist., 952 F.2d 1173 (9" Cir. 1992), in which the Circuit Court
held that where regulatory measures are designed to benefit in-state
economic interests by burdening out-of-state competitors, they are
prohibited by the dormant commerce clause.
20
Other courts have applied the Carbone decision, and each
have initially questioned the prima facie basis for the plaintiff's
case before shifting the burden to the defendant.
Once a state law is shown to discriminate against
interstate commerce either on its face or in practical
effect, the burden falls upon the state to demonstrate
both that the law serves a legitimate local purpose
and that such purpose could not be served by less
restrictive means. ... Attempts to fit this narrow
exception must be rejected absent the clearest
showing that the unobstructed flow of interstate
commerce itself is unable to solve the local problem.
Waste Management of Pennsylvania, Inc., v. Shinn, 938 F.Supp.
1243, 1255 (D.N.J. 1996), citing Carbone, 114 S.Ct. at 1683.
3.
THE CIRCUIT COURT ERRED IN FINDING THAT THE
TAKINGS CLAUSE WAS NOT VIOLATED BY THE
MANDATORY RECYCLING FEE CHARGED
The Ninth Circuit opined that the mandatory recycling fee
charged by exclusive franchisee and Respondent Independent
Sanitation is the equivalent of a mandatory property tax for the
purposes of school support, even upon persons with no children.
21
This would be a reasonable position if the panel had not overlooked
a key fact — the mandatory recycling fee was not approved by the
electorate. The fee was put into place by a company which is
basically unregulated but which holds a monopoly.
In fact, the appellate panel overlooked a more integral fact
— that the monopoly created was also never approved by the
electorate nor was the very idea of creating such a monopoly.
While some public hearings were held, the stated purpose of the
ordinance — to reduce dumping of garbage in the outlying areas of
Washoe County — has failed miserably as was explained without
argument in Petitioners’ pleadings and supporting affidavits. The
ordinance is inappropriate for the purpose upon which it is based.
The panel overlooked the fact that each of the individual Petitioners
and IRG’s other, unnamed, members each suffer an ongoing
assessment of $1.25 per month as a result of this ordinance.
The franchise agreement entered into by Respondent
Washoe County allows Respondent Independent Sanitation to bill
all individuals for the collection of recyclables, whether or not any
22
collection is made. The Nevada State Legislature has put into place
a statute which transfers ownership in recyclable materials to a
curbside collection agency when such materials are set out for
collection at the curbside or at another appropriate site designated
for collection. See, Nevada Revised Statute 444.585.1(a) and (b).
The obvious and common sense inference is that the ownership of
these materials remains with the citizenry until such time as they
surrender their interest.
Thus, the recognized property interests of Petitioners and
other like situated parties in recyclable materials, as recognized in
N.R.S. 444.585, are now subjected to a governmental taking by
the imposition of the mandatory assessment in favor of Respondent
Independent Sanitation and implicitly approved by Respondent
Washoe County. This fee is required to be paid to Respondent
Independent Sanitation for mandatory involvement in a curbside
recycling program whether recyclable materials are deposited at the
curbside or not. The utilization of such a program requires the
voluntary surrender of property nghts to the Respondent
23
;
4
franchisee, who may profit from the subsequent resale of the
recycled goods. However, the citizens of Washoe County are
obligated to pay Respondent Independent Sanitation even if those
citizens, including Petitioners, choose to retain their own property.
The mandatory collection of recyclable materials and the
imposition of a fee for such service serves no purpose other than to
limit competition and thereby increase the profits of Respondent
Independent Sanitation and to impose a hidden tax through the fees
paid by Respondent Independent Sanitation to Respondent Washoe
County. By virtue of this imposition, the County is confiscating
the property of its citizens, in a manner that is effectively a heavy
tax on recyclables within unincorporated Washoe County.
4.
THE CIRCUIT COURT ERRED IN FAILING TO FIND
THAT THE WASHOE COUNTY ORDINANCE FAILS
THE THREE-PART POLICE POWERS TEST
While the district court was correct in its standard, both it
and the Circuit Court overlooked facts which show that the
ordinances in question fail the three-part police powers test each
24
court quoted.
While the ordinance are aimed at serving some legitimate
purpose and are rationally related to that purpose, the county
government overstepped its authority as granted by the state. The
State law in question, Nevada Revised Statutes 244.187 requires a
balancing test to show that the collection and disposal of garbage or
other waste be performed in a manner that is “adequate, economical
and efficient” and that it “promote[s] the general welfare.” As
Petitioners showed in their evidence, these criteria were not met.
The ordinances permit the creation of a nearly unregulated
monopoly which imposes mandatory fees upon persons who do not
use the service, as well as upon those who do. Additionally, there
is allowed a non-voter approved “tax” which requires payment for
removal of property — recyclable items — without providing for
any compensation to the citizen from whom the property is taken.
While the citizens do not have to use the services of the recyclable
pickup, they must still pay — and then their money is the only
thing being “taken.”
wy 2h
It is well settled that actions are within the domain
of the Commerce Clause if they burden interstate
commerce or impede its free flow. NLRB v. Jones
, 301 U.S. 1, 31, 57 S.Ct.
615, 81 L.Ed. 893 (1937).
C&A Carbone, Inc. vy. Town of Clarkstown, --- U.S. --, 114 S.Ct.
1677, 1681-1682, 128 L.Ed.2d 399 (1994).
The collection, transportation and disposal of
garbage is beyond doubt an act of commerce.
[W]hat makes garbage a profitable business is not its
own worth, but the fact that its possessor must pay
to get rid of it. In other words, the article of
commerce is not so much the solid waste itself, but
rather the service of processing and disposing of it.
Carbone, supra, at 1682.
CONCLUSION
Based upon all of the foregoing, the United States Supreme
Court should issues a Writ of Certiorari in order to review this
matter and the decisions and orders issued by the United States
District Court for the District of Nevada and the Circuit Court of
Appeals for the Ninth Circuit.
26
Respectfully submitted this 29" day of July, 1997.
Respectfully Submitted,
ZEH, POLAHA, SPOO, HEARNE & PICKER
J /
By: A a
MARC PICKER, ESQ. *
Attorney for Petitioner
27
)
No.
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., a non-profit
Nevada Corporation; JANICE BUSE;
HILARY BURSON; JUNE LINK, individuals,
Petitioners,
VS.
WASHOE COUNTY, by ard through
the Board of County Commissioners of
the County of Washoe; DIANNE CORNWALL,
Chairman: LARRY BECK, Vice Chairman,
GENE McDOWELL; STEVE BRADHURST;,
INDEPENDENT SANITATION CO., INC.,
A Nevada corporation,
Respondents.
PETITION FOR WRIT OF CERTIORARI FROM
THE COURT OF APPEALS FOR THE NINTH CIRCUIT
APPENDICES TO PETITION
MARC PICKER, ESQ.
ZEH, POLAHA, SPOO, HEARNE & PICKER
575 Forest St., Suite 200
Reno, Nevada 89509
702/323-5700
Attorney for Petitioner
APPENDIX A
U.S. DISTRICT COURT
DISTRICT OF NEVADA
ENTERED & SERVED
OCT 16 1995
CLERK, U.S. DISTRICT COURT
BY _/s/ DEPUTY
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT, INC., et al.,
Plaintiffs, CV-N-94-526-ECR
VS
WASHOE COUNTY, et al., ORDER
Defendants.
/
The court now rules on Defendants’ Motions for Summary
Judgment (Docs. ##16, 17) and on Plaintiffs’ Cross-Motion for
Summary Judgment (Doc. #18)
This is an action for declaratory judgment. Plaintiffs allege
that certain Washoe County ordinances relating to the collection of
garbage are unconstitutional, and seek such a declaration from this
court. The claim is that the ordinances violate the Commerce and
Due Process Clauses of the Constitution of the United States.
Plaintiffs claim that the ordinances exceed Defendant Washoe
County’s police power. Plaintiffs express dissatisfaction with
Washoe County’s failure to make findings that its exclusive contract
with ISC was more beneficial than some other means of collecting the
county’s trash. Plaintiff decries the lack of “evidence” that the
franchise serves its purpose. Plaintiff further complains that the local
ordinance was not “narrowly tailored.” This court is not the
appropriate body to which to address plaintiffs’ complaint regarding
the wisdom of the county’s decision. If the ordinance was (1) within
the scope of the authority granted the county by the state
government, (2) aimed at serving some legitimate public purpose and
(3) rationally related to that purpose, this court will not second-guess
the county government. See L&H Sanitation, Inc., v. Lake City
Sanitation, Inc., 769 F.2d 517, 522 (9" Cir. 1985).
The State of Nevada has explicitly granted local governments
the authority to grant exclusive garbage collection franchises. Nev.
Rev. Stat. §§244.187, 244.188. Plaintiffs’ police power agrument is
therefore without merit.
Plaintiffs rely on the United States Supreme Court’s recent
decision in C&A Carbone, Inc. v. Town of Clarkstown, 114 S.Ct.
1677 (1994), to bolster their Commerce Clause objection to Washoe
County’s decision to grant Defendant Independent Sanitation Co.,
Inc. (ISC) an exclusive waste collection franchise. Their reliance is
ill-founded: Carbone struck down a local ordinance whose primary
purpose was the generation of revenue for the benefit of the local
waste-processor. As such, the ordinance in Carbone was analyzed
under the more rigorous of the two prevailing Commerce Clause
tests.
The Ninth Circuit recently distinguished the two approaches:
“If the primary purpose of the regulation is to regulate interstate
commerce and thus to invade the province of Congress, or if the
regulation favors in-state interests over out-of-state interests, then it
will generally be subject to rigorous constitutional scrutiny. If,
however, the regulation in question is designed to address a
legitimate local concern and incidentally affects interstate commerce,
we must use the Pike balancing test ....” Kleenwell Biohazard Waste
and Gen. Ecology Consultants, Inc.. v. Nelson, 48 F.3d 391, 398 (9"
Cir. 1995).
The Commerce Clause “balancing test” derives from the
decision of the Supreme Court in Pike v. Bruce Church, 397 U:S.
137 (1970). Pike recognized that “incidental burdens on interstate
commerce may be unavoidable when a State regulates to safeguard
the health and safety of its people.” City of Philadelphia v. New
Jersey, 437 U.S. 617, 623-24 (1978). A challenged regulation which
even-handedly serves a legitimate local public interest, and affects
interstate commerce only incidentally is now unconstitutional “unless
the burden imposed upon [interstate] commerce is clearly excessive in
relation to the putative local benefit.” Pike, 397 U.S. at 142.
Few local public interests can claim greater legitimacy than
the interest in managing the garbage output of a community. It is this
very interest which the state statute and local ordinance at issue here
are designed to serve. It is simply beyond question that (1) the state
in plain language authorized Washoe County to enter into exclusive
franchise agreements for the disposal] of garbage, (2) efficient garbage
disposal is a legitimate public interest, and (3) the county’s grant of
an exclusive franchise to ISC is rationally related to that interest.
Since it cannot be said that Washoe County’s scheme imposes a
burden on interstate commerce that is clearly excessive in relation to
the putative local benefits, see Pike, 397 U.S. at 142, the conclusion
that the statute and ordinance do not violate the Commerce Clause is
therefore inescapable
Carbone struck down a scheme whereby all local waste
haulers were forced to do business with the local processing facility.
Plaintiffs seize upon the superficial similarity between the waste
processor in Carbone and ISC in the present case. All Washoe
County residence and business must, under the challenged ordinance,
subscribe to ISC’s service. There, however, the parallel ends. In
Carbone, the cost of the service was inflated in order for the
government to recoup its investment in the facility. In the present
SEAS Se
situation, there is no evidence that the county’s purpose is anything
other than efficient sanitation. Moreover, there is not even the hint of
discrimination against out-of-state businesses. The county makes not
distinction between local and non-local businesses. Plaintiffs
themselves acknowledge as much when they assert that the
“ordinance deprives both in-state and out-of-state businesses of
access to the local market.” Plaintiff's Memorandum of Points and
Authorities in Opposition to Defendants’ Motions for Summary
Judgment and Supporting Plaintiffs’ Cross-Motion for Summary
Judgment, Doc. #19, Page 5. All persons and businesses who
generate trash in Washoe County must dispose of it through ISC.
It strains credulity to read Carbone so as to deprive local
governments the authority to delegate the collection of trash to a
private entity, at least where the local government’s interest relates
solely to health and safety, and not to the preservation of revenue
sources. Were it otherwise, vast numbers of municipalities and
county governments would find themselves unable to provide for the
collection of trash. This court is loath to attribute such an intention
on the part of the Carbone Court.
Plaintiffs’ due process and takings claims are similarly
meritless. The Due Process and Just Compensation Clauses do not
limit the power of local governments to provide for the collection and
disposal of trash. California Reduction Co. v. Sanitary Reduction
Works, 199 U.S. 306 (1905); Michigan v. Gardner, 199 U.S. 325
(1905) (both cited in USA Recycling Inc. v. Babylon, New York, 64
U.S_L.W. 2186 (2d Cir. 1995)). Both those early cases upheld the
validity of local ordinances granting exclusive franchises to private
trash collection entities. As the Second Circuit observed in USA
Recycling, if all exclusive trash collection franchises were held
unconstitutional, thousands of municipalities would henceforth be
unable to undertake the traditional government function of collecting
garbage._USA Recycling, 64 U.S.L.W. at 2187
Plaintiffs’ claim that the imposition of county-wide recycling
fees subjects them to an uncompensated taking is almost too frivolous
to deserve comment. Plaintiff argues that by forcing even those
citizens who refuse to recycle their glass, aluminum or paper waste to
contribute to the recycling program, the county deprives them of
property without compensation, in violation of the Fifth Amendment
to the U.S. Constitution. The argument is utterly without merit.
Under this reasoning, a citizen who refrains from telephoning the
local fire department when her lawn catches fire, and chooses instead
to fight the blaze herself, should be exempt from that portion of her
local tax assessment used to maintain the fire department. Plaintiff's
conclusory allegation that the imposition of the recycling program
and the collection of fees for its maintenance “serve[] no purpose
other than to limit competition and thereby increase [ISC’s profits]”
is not worthy of refutation. Recycling programs are unquestionably a
legitimate function of local governments, despite Plaintiff's
objections.
IT IS THEREFORE ORDERED that Defendants’ Motions
for Summary Judgment (Docs. ##16, 17) are hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Cross-Motion
for Summary Judgment (Doc. #18) is hereby DENIED
IT IS FURTHER ORDERED that the Clerk shall enter
———— ae ee
judgment accordingly.
DATED: October 11, 1995.
A RN eee
UNITED STATES DISTRICT JUDGE
APPENDIX B
INDIVIDUALS FOR RESPONSIBLE GOVERNMENT INC., a
non-profit Nevada corporation; JANICE BUSE, HILARY
BURSON; JUNE LINK, individuals, Plaintiffs-Appellants,
vs
WASHOE COUNTY, By and through the Board of County
Commissioners of the County of | Washoe; DIANNE
CORNWALL, Chairman; LARRY BECK, Vice Chairman; GENE
McDOWELL; STEVE BRADHURST, INDEPENDENT
SANITATION CO., INC., a Nevada corporation,
Defendants-Appellees.
No. 95-17264
United States Court of Appeals,
Ninth Circuit
Submitted* Feb. 14, 1997
Decided April 1, 1997
* The panel finds this case appropriate for submission without
argument pursuant to 9th Cir. R. 34-4 and Fed. R. App. P. 34(a).
Appeal from the United States District Court for the District of
Nevada. D.C. No. CV-94-00526-ECR. Edward C. Reed, Jr., District
Judge, Presiding.
Marc Picker, Reno, Nevada, for the plaintiffs-appellants.
Melanie Foster, Deputy District Attorney, Reno, Nevada; Frank
Cassas, Marshall Hill Cassas & de Lipkau, Reno, Nevada, for the
defendants-appellees.
Before: Joseph T. Sneed, Edward Leavy, and Sidney R. Thomas,
1U
Circuit Judges.
SNEED, Circuit Judge:
As happens from time-to-time, this is a case with simple facts
whose resolution involves complex legal doctrines. In 1991 and 1992,
defendant/appellee Washoe County enacted ordinances that, inter
alia, require residents in certain unincorporated areas of the County
to subscribe to a garbage collection and disposal service offered by
defendant/appellee Independent Sanitation Co., Inc.
Plaintiffs/Appellants Individuals for Responsible Government Inc.,
Janice Buse, Hilary Burson and June Link claim that these ordinances
violate Nevada statutes and the Commerce Clause of the United
States Constitution. They also claim that the County's curbside
recycling program violates the Takings Clause of the United States
Constitution. The district court granted summary judgment in favor
of defendants/appellees on all counts. We affirm
I
BACKGROUND
Washoe County, Nevada, like many other environmentally
ot BPR TR TS i ESC Is OLS Rete NP Oe EE LA SENDS 1 SA OD DO
concerned communities, confronts a problem stemming from the
illegal dumping of trash at sites other than approved dump sites. In
response to this problem, the Board of County Commissioners
("Commissioners"), in November 1991, enacted ordinance 838 to
amend chapter 90 of the County Code. Ordinance 838 provides that
the County and its authorized agents or contractees "have the
exclusive right to gather, collect and haul garbage" in certain
unincorporated areas in Washoe County. It also provides that "every
owner of real property who accumulates or causes the accumulation
of garbage . . . must subscribe to the [services for] collection, hauling
and disposal of garbage" provided by the county through Independent
Sanitation Co., its exclusive franchisee. nl
nl By means of a contract dated April 14, 1992, the County
granted Independent Sanitation an exclusive franchise to "operate all
garbage collection and disposal services in the unincorporated areas"
of Washoe County. The April 1992 contract amended an earlier,
similar contract that had been in force since 1983.
In April 1992 the Commissioners enacted ordinance 848,
which further amends chapter 90 of the County Code. Ordinance 848
creates an exemption from mandatory subscription to Independent
Sanitation's garbage service for those owners and occupants of
residential dwelling units who prefer to dispose of their own garbage.
To qualify for such an exemption, these residents must haul their
garbage "to an approved disposal site not less than every 7 calendar
days." Independent Sanitation maintains the right to bill, on a
quarterly basis, those who have been exempted. However, an exempt
resident need not pay the bill provided that he submits to Independent
Sanitation "receipts or other proof showing that he has disposed of
his garbage at an approve [sic] disposal site for each week within the
previous quarter."
The enforcement of ordinances 838 and 848 encountered
difficulties. Prior to their passage, approximately 12,000 of Washoe
County's 16,000 rural households subscribed to Independent
Sanitation's garbage service, while approximately 4000 rural residents
13
a hiv cin es E23
elected to dump their own trash. There are two legal dump sites in
Washoe County, Nevada: the "Lockwood" landfill, located east of
Reno, and the "Reno transfer station," located in the city of Reno.
Independent Sanitation and its affiliate Reno Disposal Co. maintain
and operate both dump sites. Despite these legal dumping options
within Washoe County, prior to enactment of ordinances 838 and 848
many county residents preferred to dispose of their household
garbage in California because the dump sites in Susanville and
Portola, California were more convenient and cost effective than the
options available in Washoe County.
In response to ordinance 848, approximately 400 residents
received exemptions from mandatory collection, allowing them to
dispose of their own garbage. However, some who initially obtained
exemptions later had their exemptions revoked for failure to provide
receipts documenting their weekly disposal of garbage. As of August,
1993, Reno Disposal Co. had filed suit in small claims court against
72 Washoe County residents who had failed to pay for their garbage
service. Those subjected to suit included at least one person who
tS
refused to pay after his exemption was revoked.
Appellant June Link, among others, was angry about being
brought into court and ordered to pay for a service that she neither
wanted nor believed she needed. Appellants Hilary Burson and Janice
Buse also object to being forced to pay for a service they do not
want. Hence, in July 1994, appellants filed suit in state court, seeking
a declaratory judgment that ordinances 838 and 848 are
unconstitutional. Appellees removed the case to federal district court
and filed motions for summary judgment. The district court granted
appellees’ motions for summary judgment in October, 1995.
Appellants timely appealed.
II.
STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C. @ 1331
and @ 1441. This court has appellate jurisdiction pursuant to 28
U.S.C. @ 1291. The district court's grant of summary judgment is
reviewed de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir
1996).
15
ee a
Il.
THE DORMANT COMMERCE CLAUSE
Appellants claim that ordinances 838 and 848 violate the
so-called "dormant" Commerce Clause, which limits the power of
states to regulate interstate commerce. Their argument rests on
invoking the possible claims of the operators of the California dump
sites who are not parties in this proceeding. Such claims might rest on
the Supreme Court's decision in C&A Carbone, Inc. v. Town of
Clarkstown, N.Y., 511 U.S. 383 (1994), in which an ordinance that
required "all solid waste to be processed at a designated transfer
station before leaving the municipality," id. at 386, violated the
Commerce Clause because it discriminated against interstate
commerce by depriving competitors, including out-of-state firms, of
access to a local market. Id. at 389. Their argument appears to be
that the ordinance interferes with interstate commerce by preventing
them from utilizing dump sites outside the State of Nevada. While we
have serious reservations about the strength of this argument, we do
not reach the merits of such a claim. Instead, we hold that appellants
lack standing to raise a dormant Commerce Clause challenge.
First, appellant Individuals for Responsible Government, Inc.
is a Nevada nonprofit corporation which appears to lack substance.
An association, it is true, has standing to bring suit on behalf of its
members when: "(a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to protect are germane
to the organization's purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual members in
the lawsuit." United Food and Commercial Workers v. Brown
Group, 116 S. Ct. 1529, 1534 (1996) (quoting Hunt v. Washington
State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977)).
However, the record in this case does not specify who are the
members of Individuals for Responsible Government, Inc., nor does it
specify the organization's purpose. Absent both purpose and
members, it lacks any standing to sue.
The individual plaintiffs, Janice Buse, Hilary Burson, and June
Link, lack standing to sue under the "dormant commerce clause." We
shall address both the constitutional and prudential requirements for
17
standing to bring this claim.
A. Constitutional Requirements
“The irreducible constitutional minimum of standing contains
three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). These are that the plaintiffs must have suffered an injury in
fact: that there be a causal connection between the injury and the
conduct complained of; and that it be likely that the injury will be
redressed by a favorable decision. Id. at 560-61.
Individual plaintiffs have met these requirements. They allege
that Independent Sanitation has "been aggressively utilizing legal
processes to force" them to pay for unwanted garbage collection
services. In other words, they have been ordered to pay the bill for a
service they do not want. That satisfies the "injury-in-fact"
requirement. Moreover, there is a direct causal link between
enactment of the challenged ordinances and the fact that appellants
have been forced to pay for unwanted garbage collection services.
Finally, a declaration that the ordinances are unconstitutional would
clearly redress their injuries. Therefore, all three individual appellants
18
meet the minimal constitutional standing requirements.
B. The Prudential Requirements
Apart from the constitutional requirements for standing, there
is also a set of prudential principles that bear on the question of
standing. Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 474 (1982). One
such prudential principle is that the plaintiff's complaint must "fall
within the zone of interests to be protected or regulated by the statute
or constitutional guarantee in question." Id. at 475 (quoting
Association of Data Processing Service Orgs. v. Camp, 397 U.S
150, 153 (1970)). The so-called "zone of interests" test "denies a
night of review if the plaintiff's interests are . . . marginally related to
or inconsistent with the purposes implicit in the [relevant
constitutional provision]." Wyoming v. Oklahoma, 502 U.S. 437, 469
(Scalia, J., dissen.. 1g) (1992) (quoting Clarke v. Securities Industry
Assn., 479 U.S. 388, 399 (1987)).
The Supreme Court has applied the zone of interests test most
frequently in suits brought under the Administrative Procedure Act.
19
rae ae ee cP ae aaa
| :
| See, e.g., Air Courier Conference of America v. American Postal
Workers Union, 498 U.S. 517 (1991); Clarke, 479 U.S. 388.
However, the zone of interests test also "governs claims under the
Constitution in general, and under the negative [dormant] Commerce
Clause in particular." Wyoming, 502 U.S. 437, 469 (Scalia, J.,
dissenting) (citing Valley Forge, 454 U.S. at 475, and Boston Stock
Exchange v. State Tax Comm'n, 429 U.S. 318, 320-21, n.3 (1977)).
To ascertain whether appellants have standing to raise the
dormant Commerce Clause challenge in the present case, it must be
determined whether their interests bear more than a marginal
relationship to the purposes underlying the dormant Commerce
Clause. The chief purpose underlying that Clause is to limit "the
power of the States to erect barriers against interstate trade." Dennis
v. Higgins, 498 U.S. 439, 446 (1991). The appellants’ injury,
however, is solely that Washoe County's garbage collection ordinance
forces them "to pay for unnecessary and unwanted garbage services."
That is an injury not even marginally related to the purposes
underlying the dormant Commerce Clause
20
Appellants primary contention is that ordinances 838 and 848
impose a barrier to interstate commerce by creating regulatory
obstacles for residents of Washoe County who, prior to enactment of
the ordinances, transported their garbage across state lines for
disposal at the dump sites in Susanville and/or Portola, California.
The facts offered in support of this contention are these. Prior
to enactment of the ordinances, approximately 4000 residents of
Washoe County chose to dump their own garbage, rather than
utilizing Independent Sanitation's collection service. After enactment
of the ordinances, the county issued about 400 permits exempting
residents from the mandatory garbage collection requirement. Thus,
as a result of the ordinances, Independent Sanitation gained about
3600 new customers. Since Independent Sanitation operates two
dump sites in Washoe County, it is reasonable to infer that the
garbage of all 3600 new customers is now being dumped in Nevada.
Prior to enactment of ordinances 838 and 848, some unspecified
number of those 3600 customers were dumping their garbage in
California.
21
2 ea ed a i ade
Insofar as they receive garbage from Nevada, the operators of
dump sites in California are engaged in interstate commerce. See
Carbone, 511 U.S. at 389; Philadelphia v. New Jersey, 437 U.S. 617,
621-23 (1978). Because these ordinances have had the effect of
reducing the flow of garbage from Nevada to California, they have
imposed a small barrier to interstate commerce.
But even on the implausible assumption that all 3600 new
customers previously dumped their garbage in California, we hold
that the appellants would still not satisfy the prudential "zone of
interests test" set forth in Valley Forge Christian College, supra
Their injury (being forced to pay for services they do not want)
would exist even if Independent Sanitation were to dump all the
garbage it collects from Nevada across the state line in California.
Under those circumstances, the Washoe County ordinance would
impose no barrier to interstate commerce. Thus, the appellants’
interests are, at best, "marginally related to . . . the purposes implic.*
in" the dormant Commerce Clause. Clarke, 479 U.S. at 399.
Therefore, appellants lack standing to raise a Commerce Clause
22
challenge boomin their complaint is not “within the zone of interests
to be protected" ™ that Clause. Camp, 397 U.S. at 153.
IV.
TAKINGS CLAUSE
Although ordinances 838 and 848 are silent with respect to
recycling, Independent Sanitation, in its exclusive franchise
agreement with Washoe County, has undertaken an obligation to
provide a curbside recycling service for all residential customers.
Independent Sanitation bills its customers $ 1.25 per month for the
recycling service, even if they never use the service. Appellants allege
that they have a property interest in recyclable materials, as
recognized in Nevada Revised Statutes section 444.585. Appellants
further allege that the curbside recycling program constitutes a taking
of private property for public use without just compensation, in
violation of the Takings Clause.
Appellants’ argument is without merit. Independent
Sanitation's curbside recycling service cannot be considered a
"taking" of recyclable materials, because residents have no obligation
23
to utilize that service. Residents can legally choose to deliver their
recyclable materials to recycling centers, or not to recycle at all. Nor
is the $ 1.25 per month service charge a taking. The service charge is
essentially equivalent to a general property tax targeted to fund a
specific county-wide service. Hence, it is analogous to a school tax
that property owners are required to pay, even though their children
do not attend public schools. Such property taxes are not "takings,"
within the meaning of the Takings Clause.
V.
NEVADA STATUTORY CLAIM
Appellants' statutory claims are based on Nevada Revised
Statutes 244.187 which provides that "[a] board of county
commissioners may, to provide adequate, economical and efficient
services to the inhabitants of the county and to promote the general
welfare of those inhabitants, displace or limit competition in . . . [the]
collection and disposal of garbage and other waste." Appellants
contend that Washoe County's mandatory garbage collection plan is
not "adequate, economical and efficient," and that it does not
24
"promote the general welfare." Therefore, appellants contend,
Washoe County has exceeded its police powers, and the authority
granted to it by NRS 244.187.
In response to this argument, the district court stated:
This court is not the appropriate body to which to address
niaintiffs' complaints regarding the wisdom of the county's decision. If
the ordinance was (1) within the scope of the authority granted the
county by the state government, (2) aimed at serving some legitimate
public purpose and (3) rationally related to that purpose, this court
will not second-guess the county government.
We agree. The district court correctly decided that Washoe
County's mandatory garbage collection plan satisfies this three-part
test. Hence, plaintiffs’ police power argument is without merit.
VI.
CONCLUSION
We affirm the district court's grant of summary judgment in
favor of defendants/appellees.
AFFIRMED.
APPENDIX C
MARC PICKER, ESQ., LTD.
417 West Plumb Lane
Post Office Box 3344
Reno, NV 89504
(702) 324-4533
Attorney for Individuals for
Responsible Government, Inc.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
“x *
INDIVIDUALS FOR Case No. CV-N-94-526-ECR
RESPONSIBLE GOVERNMENT
INC., a non-profit Nevada
corporation; JANICE BUSE,
HILARY BURSON, and
JUNE LINK, individuals,
Plaintiffs,
VS. PLAINTIFF INDIVIDUALS
FOR RESPONSIBLE
WASHOE COUNTY BY AND GOVERNMENT, INC.’S
THROUGH THE BOARD OF CROSS-MOTION FOR
COUNTY COMMISSIONERS SUMMARY JUDGMENT
OF THE COUNTY OF
WASHOE, CHAIRMAN
DIANNE CORNWALL, VICE
CHAIRMAN LARRY BECK,
GENE MCDOWELL, STEVE
26
BRADHURST;; and
INDEPENDENT SANITATION
CO., INC., a Nevada corporation,
Defendants.
/
TO: THE HONORABLE UNITED STATES DISTRICT COURT,
DISTRICT OF NEVADA
Plaintiff Individuals for Responsible Government, Inc., moves
this court, pursuant to Rule 56, Federal Rules of Civil Procedure, to
enter an order in favor of Plaintiff. This motion is made upon the
grounds that there is no genuine issue of fact raised by the First
Amended Complaint or the answers thereto, and Plaintiff is entitled
to judgment as a matter of law.
This motion is based on the instant motion, the memorandum
of points and authorities filed herewith, and the records and pleadings
on file.
Dated: This 31st day of August 1995.
Law Office of Marc Picker, Esq., Ltd.
417 W. Plumb Lane
P.O. Box 3344
Reno, Nevada 89504
27
Attorney for Plaintiff Individuals
for Responsible Government, Inc.
By: _S/
Marc Picker, Esq.
c
4
.
4
SPM al ik al aS A BOI RAI coi eA Sah A STN
wd ak a bie id bide deco
28
Sai il te a2 Si. bas a
APPENDIX D
MARC PICKER, ESQ., LTD.
417 West Plumb Lane
Post Office Box 3344
Reno, NV 89504
(702) 324-4533
Attorney for Individuals for
Responsible Government, Inc.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
* * *
INDIVIDUALS FOR Case No. CV-N-94-526-ECR
RESPONSIBLE GOVERNMENT
INC., a non-profit Nevada
corporation; JANICE BUSE,
HILARY BURSON, and
JUNE LINK, individuals,
Plaintiffs,
VS. PLAINTIFF'S
MEMORANDUM OF
WASHOE COUNTY BY AND POINT AND AUTHORITIES
THROUGH THE BOARD OF IN OPPOSITION TO
COUNTY COMMISSIONERS DEFENDANTS’ MOTIONS
OF THE COUNTY OF WASHOE, FOR SUMMARY
CHAIRMAN DIANNE JUDGMENT AND
CORNWALL, VICE CHAIRMAN SUPPORTING PLAINTIFFS’
LARRY BECK, GENE CROSS-MOTION FOR
29
Selena caat pene
MCDOWELL, STEVE SUMMARY JUDGMENT
BRADHURST; and
INDEPENDENT SANITATION
CO., INC., a Nevada corporation,
Defendants.
I.
Plaintiff Individuals for Responsible Government submit the
following memorandum of points and authorities in opposition to
Defendants motions for summary judgment and in support of its own
cross-motion for summary judgment.
Il.
As our country celebrates the triumph of our ideals of free
markets and individual choice and responsibility around the world,
and as our nation seeks to remove regulatory barriers to the
marketplace and increase the competition in services from traditional
monopolies such as telephone, cable and, even, electrical power,
Washoe County has determined that a command economy with a
monopoly is more suited to the needs of Nevadans. Washoe County
has eliminated any competition for garbage collection, and imposed
30
a fee for the collection of property of citizens, such fee to be collected
regardless of whether these citizens deign to surrender their property
to a franchisee for its own gain.
Il.
STATEMENT OF FACTS
In April 1992, the Washoe County Commission amended
the Washoe County Code, by adopting Ordinances 838 and 848
("Ordinances") to provide for mandatory collection of household
garbage from all residents in the unincorporated county. The
Ordinances have been incorporated into the County Code as
Chapter 90. The stated reason of County officials for imposing
mandatory collection was to eliminate or reduce illegal dumping in
the unincorporated portions of the County. Affidavit of Janice
Buse, 41 and Exhibit 1. Plaintiff asserts that the primary effects of
the Ordinances are: (1) To eliminate freedom of choice for county
residents as to with whom they choose to do business, (2) To
increase the funds available to the County, (3) To create additional
financial burdens on the residents, (4) To create a monopoly for
3]
Defendant Independent Sanitation, and (5) To result in the seizure
or impairment of their property. The Ordinances have not
addressed the problem of illegal dumping in the unihabited areas,
nor are they reasonably and narrowly crafted to achieve the
County's stated goal while minimizing the burden on residents of
the County.
The County purportedly enacted these Ordinarices to
address the problem of increased dumping in the desert of trash and
garbage. Buse Affidavit at {1 and Exhibit 1. The County already
has ordinances which prohibit the dumping of trash, in addition to
existing state and federal laws. Buse Affidavit at { 4 and Exhibit
2. Citizens of Washoe County, including members of Plaintiff
Individuals for Responsible Government, have attempted to assist
the County in enforcing these anti-dumping ordinances, but have
received little cooperation or effort from the County in doing so.
Buse Affidavit at 4 3-7.
In 1992, in response to citizen protests, an Illegal Dumping
Task Force was established by the Washoe County Commission to
32
educate to the public as to the need for proper disposal of trash and
garbage and to seek the assistance of the public, law enforcement
and health authorities and the judiciary to enforce the anti-dumping
ordinances and statutes. Buse Affidavit at ¢q 3-4. This Task
Force organized citizen watch programs to assist law enforcement
and health officials in apprehending those responsible for the illegal
dumping. Task Force members met with law enforcement and
judicial officials to ensure that the efforts of private citizens to
undertake a significant role in eliminating or reducing illegal
dumping would be met with proper enforcement actions. The Task
Force was assured by both judicial and enforcement personnel that
the full measure of penalties provided by law would be sought in
all cases of illegal dumping. Buse Affidavit at 445. The actions
and observations of private citizens working in cooperation with
the Task Force resulted in several persons being apprehended,
however, none of the individuals apprehended received a fine
exceeding one-quarter of the maximum imposed by law.
The County has shown limited interest in the enforcement
33
of its anti-dumping ordinances or the state laws on this matter.
Illegal dumps continue to proliferate within Washoe County. Buse
Affidavit at 48 and Exhibit 4. Few actions have been prosecuted
by County for the illegal dumping of trash, and those few cited by
the County in newpaper accounts only highlight the continuing
existence of the problem which these Ordinances were intended to
cure.
Prior to the passage of the Ordinances, the citizens and
residents of Washoe County had no mandatory household pickup,
and the disposal of garbage was left to market forces and the
initiative of the residents. Burson Affidavit at 42: Fells Affidavit
at 443-6. In fact, before the passage of the first franchise for the
County in 1967, citizens had the choice of at least two services for
the collection of their garbage and trash. Fells Affidavit at %3.
While a majority of the citizens chose to subscribe to a service
(which the County had chosen to limit to a monopoly in 1967),
approximately four thousand citizens declined to contract with
Independent Sanitation. Buse Affidavit, Exhibit 1.
34
Residents of northern Washoe County took or take their
household garbage across state lines into California, for disposal in
Susanville. Burson Affidavit at 44-5. This option was both more
convenient and cost effective, as northern Washoe County is
considerably closer to Susanville, California than to the landfill in
Lockwood, Nevada.
IV.
ARGUMENT
l. The Mandatory Garbage Collection Ordinance
Eliminates Competition Without Meeting Standards
Required by the Nevada Revised Statutes
Nevada Revised Statutes § 244.187 provides:
Displacement or limitation of competition: Services:
"A board of County Commissioners may, to provide
adequate, economical and efficient services to the
inhabitants of the county and to promote the general welfare
of those inhabitants, displace or limit competition in any of
the following areas:
3. ~— Collection and disposal of garbage and other waste.
The County has made no findings and offered no evidence
that the imposition of a monopoly franchise is necessarily more
35
“adequate, economical and efficient” than a free market would
provide. The evidence is to the contrary, not only in general
economic experience of the country, but specifically in this
County. See Fells Affidavit at %3.
Moreover, the evidence presented does not support that the
“general welfare” of the citizens is improved by the issuance of a
monopoly franchise. The regularly stated reason for the issuance
of the mandatory franchise is the elimination of illegal dumps. But
there is no evidence submitted that the monopoly franchise has
accomplished any such thing. See Buse Affidavit at 41 and 48, and
Exhibit 3. The franchise has wholly failed in its stated purpose,
while continuing to burden the citizens. The Ordinance was not
narrowly tailored to achieve its stated purpose.
2. The Mandatory Trash Collection
Ordinance and its Companion
Franchise Agreement Violates the
Commerce Clause of the United
S Constituti
It is well settled that actions are within the domain
of the Commerce Clause if they burden interstate
commerce or impede its free flow. NLRB vy. Jones
36
& Laughlin Steel Corp., 301 U.S. 1, 31 (1937).
Quoted in C&A Carbone, Inc, v. Town of Clarkstown, -- U.S. ---,
114 S.Ct. 1677, 1681-1682 (1994). The collection, transportation
and disposal of garbage is beyond doubt an act of commerce.
[What makes garbage a profitable business is not its
own worth, but the fact that its possessor must pay
to get rid of it. In other words, the article of
commerce is not so much the solid waste itself, but
rather the service of processing and disposing of it.
Carbone at 1682.
Restrictions on the disposal of trash do reach interstate
commerce. The effect of these Ordinances is to reserve an area of
commerce for a favored local operator. The United States
Supreme Court has already spoken as to the scrutiny with which
such ordinances should be reviewed. Carbone at 1683.
Discrimination against interstate commerce is per se
invalid, save in the narrow class of cases in which
the municipality can demonstrate that, under
rigorous scrutiny, that it has no other means to
advance a legitimate local interest.
Maine v. Taylor, 477 U.S. 131 (1986).
This matter presents a situation very similar to that
37
presented in Carbone, in which a single favored local operator is
granted an exclusive market, in which no other party, local or
interstate may compete. Carbone at 1683. Such an ordinance
deprives both in-state and out-of-state businesses of access to the
local market, and denies freedom of choice and contract to the
citizens resident in Washoe County.
A. The Purported Purpose of the Mandatory Garbage
Collection Ordinance and Monopoly Franchise May
Be Achieved Through Enforcement of Existing
Ordinances_and Statutes
The purported purpose of the Ordinances and the granting
of a monopoly franchise may be achieved through the enforcement
of existing regulations, ordinances and statutes. The Supreme
Court has stated an action is within the scope of the Commerce
Clause if it burdens interstate commerce or impedes its flow. The
Supreme Court has held that two lines of analysis may be applied
to determine whether an action violates the Commerce Clause:
first, the action discriminates against interstate
commerce, Philadelphia, 437 U.S. at 625, 98 S.Ct.
at 2535; and second the action imposes a burden that
is “clearly excessive in relation to the putative local
38
benefits” (Pike v. Bruce Church, 397 U.S. 137
(1970).
Carbone at 1682.
In Carbone the Supreme Court held that the township has a
variety of nondiscriminatory alternatives for resolving health and
environmental problems rather than creating a monopoly on the
handling of trash. “The most obvious would be uniform safety
raion enacted without the object to discriminate. These
regulations would ensure that competitors like Carbone do not
underprice the market by cutting corners.” Carbone at 1683.
In light of the failure of the mandatory garbage collection
ordinances and monopoly franchise to achieve the stated goals,
there is no adequate justification for the elimination of competition
and the interference with personal freedoms.
3. Recyclable Materials Are Property of Individuals
Pursuant to Nevada Revised Statute Section
444 S85.
The franchise agreement entered into by Washoe County
allows Independent Sanitation to bill all individuals for the
39
;
|
.
collection of recyclables, whether or not any collection is made.
Buse Affidavit at 49, Exhibit 4.
The Nevada State Legislature has determined that ownership
of recyclable materials passes to a curbside collection agency only
when such materials are set out for collection at the curbside or at
another appropriate site designated for collection. N.R.S.
§444.585.1(a) and (b). The obvious inference is that the
ownership of these materials remains with the citizenry until such
time as they surrender their interest.
Petitioners and like situated parties’ property interest in
their recyclable materials, as recognized in N.R.S. §444.585, is
being subject to a governmental taking by the imposition of such
fee by Respondents which must be paid to Independent Sanitation
for mandatory subscription to a curbside recycling program. The
utilization of such a program requires the voluntary surrender of
property rights to the franchisee, who may profit from the
Subsequent resale of the recycled goods. However, the citizens of
Washoe County are obliged to pay Independent Sanitation even if
40
they choose to retain their own property. Buse Affidavit at 49,
Exhibit 4.
The mandatory collection of recyciable materials and the
imposition of a fee for such service serves no purpose other than to
limit competition and thereby increase the profits of Independent
Sanitation and to impose a hidden tax through the fees paid by
Independent Sanitation to Washoe County. By virtue of this
imposition, the County is confiscating the property of its citizens,
in a manner that is effectively a heavy tax on recyclables within
unincorporated Washoe County.
4. Defendants Position Is Based on Cases Which Are
Outdated and Have Been Placed in Questionable
Status Due to More Recent Supreme Court
Decisi
Defendants have cited numerous cases which state that the
granting of a monopoly franchise and mandatory collection of fees
is within the power of municipalities. It is not questioned that such
was the position of the courts, but we note that very few of the
cited cases have been decided in the last few years, and only three
of consequence in the past five years: Peninsula Sanitation v. City
of Mustique, 526 N.W.2d 607 (Mich. 1995), Kootenai County
Property Assoc, v, Kootenai County, 769 P.2d 553 (Idaho 1989),
and Ambulance Service of Reno, Inc, v. Nevada Ambulance
Services, Inc., 819 F.2d 910 (9th Cir. 1987).
The Court of Appeals of Michigan, in deciding Peninsula
Sanitation, cited no Supreme Court case newer than 1905, thus
failing to reflect the Court’s tremendous body of case law on the
Commerce Clause since that date. As the Court noted in City of
Philadelphia v. New Jersey, 98 S.Ct. 2531, ‘[t]he bounds of these
restraints appear nowhere in the words of the Commerce Clause,
but have emerged gradually in the decisions of the Court giving
effect to its basic purpose. Id. at 2535 The-decision in
Ambulance Service of Reno is distinguishable in that the action was
based on an alleged violation was of the Sherman Anti-Trust Act,
distinct from the grounds asserted in this matter.
Kootenai County Property Assoc, was also decided on
different grounds, without a discussion of the issues presented in
42
this case, being based largely on a challenge to the status of the
“fees” as taxes under the Idaho Constitution. Plaintiff also notes
that the dissent in that matter cited another Idaho case, Brewster v.
City of Pocatello, 768 P.2d 765 (1988) in which the Idaho
Supreme Court stated:
In a general sense a fee is a charge for a direct
public service rendered to the particular consumer, |
while a tax is a forced contribution by the public at
large to meet public needs.
Id. at 768. In a very real sense, the fees imposed under these
Ordinances are taxes.
ee a ee a
CONCLUSION
The Ordinances, including the mandatory franchise |
payments, violate the Commerce Clause in that they fail to allow
for any meaningful competition, impair interstate commerce, and
are not narrowly tailored to accomplish the stated purposes. The
Ordinances also result in an impairment of property rights because
of the imposition of a mandatory fee for a purportedly voluntary
surrender of valuable private property.
43
Wherefore, Plaintiff Individuals for Responsible
Government, Inc., prays that the Court will deny the Defendants’
Motions for Summary Judgment and grant the Plaintiff’s Cross-
Motion.
Dated: This 31st day of August 1995.
Law Office of Marc Picker, Esq., Ltd.
417 W. Plumb Lane
P.O. Box 3344
Reno, Nevada 89504
Attorney for Plaintiff Individuals
for Responsible Government, Inc.
By: Ls/_
’ ~ Marc Picker, Esq.
44
APPENDIX E
MARC PICKER, ESQ., LTD.
417 West Plumb Lane
Post Office Box 3344
Reno, NV 89504
(702) 324-4533
Attorney for Individuals for
Responsible Government, Inc.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
-
INDIVIDUALS FOR RESPONSIBLE
GOVERNMENT INC., a non-profit
Nevada corporation; JANICE
BUSE, HILARY BURSON, and
JUNE LINK, individuals,
Plaintiffs,
VS.
WASHOE COUNTY BY AND
THROUGH THE BOARD OF
COUNTY COMMISSIONERS
OF THE COUNTY OF
WASHOE, CHAIRMAN
DIANNE CORNWALL, VICE
CHAIRMAN LARRY BECK,
AFFIDAVIT OF DARREL
REED IN SUPPORT OF
PLAINTIFF’S OPPOSITION
TO DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT AND
PLAINTIFF’S
CROSS-MOTION FOR
SUMMARY JUDGMENT
MCDOWELL, STEVE
BRADHURST; and
INDEPENDENT SANITATION
CO., INC., a Nevada corporation,
Defendants.
STATE OF NEVADA )
COUNTY OF WASHOE Pe
Comes now DARREL REED, being duly sworn, deposes and
says:
i I have resided with my wife, Mary, at 395 Puma Drive, in the
unincorporated area of Washoe County for five (5) years.
y With only two residents at our home and because of our
lifestyles, my wife and I produce very little trash or garbage (trash
contaminated with organic material).
3. Because of our disposal methods for Organic materials, we
produce little if any garbage as defined in the Nevada Revised
Statutes. We also produce minimal amounts of trash, as defined, and
deliver trash and recyclable materials to the appropriate disposal
facilities as needed and reasonably prudent to do so.
46
4. All of our minimal quantity of organic wastes are used in our
compost heap, or sent down the disposal and into our cesspool.
5. I obtained an exemption from the Washoe County District
Board of Health in December 1992. A true and correct copy of this
application is attached as Exhibit | to this Affidavit.
6. In June 1994 I received a notice from the Washoe County
Board of Health, which indicated that I had not provided sufficient
receipts to Independent Sanitation to retain my exemption. A true
and correct copy of this notice is attached as Exhibit 2 to this
Affidavit. Although I responded to this notice, | was not informed
that my exemption had been revoked until an agent of Independent
Sanitation handed me a handwritten notation indicating that my
exemption had been revoked in October 1994. A true and correct
copy of the notation is attached as Exhibit 3 to this Affidavit.
Executed on this __ th day of August, 1995.
LS/
DARREL REED
Subscribed and sworn before me.
47
a notary public, this 30" day
of August, 1995.
LS/
NOTARY PUBLIC
48
DISTRICT HEALTH
DEPARTMENT
APPLICATION FOR EXEMPTIONS FROM GARBAGE
SERVICE IN THE UNINCORPORATED AREAS
OF WASHOE COUNTY
Section 90.037 of the Washoe County Code requires that every owner
of real property subscribe to the collection, hauling, and disposal of
garbage unless the person qualifies for an exemption.
I, DARREL REED, am entitled to an exemption from garbage
service because (check one):
A. ___ There is no garbage produced or stored upon the premises.
B. ___ An easily recognizable condition exists on the property that
presents a significant hardship to the resident of the property or to the
franchised collector in the normal process of curbside collection of
garbage, namely
C. X_I wish to haul and dispose of my own residential garbage.
In applying for exemption (B or C), I agree to comply with all
Statutes, laws, codes, and regulations governing the storage,
recycling, hauling, and disposal of my garbage.
Listed below are applicable District Board of Health Regulations -
Governing Solid Waste Management; and | specifically understand
that I must: ~
1. Properly store my garbage and noi cause a health hazard;
attract or propagate vectors, vermin, or pests; create unpleasant
odors; or create a nuisance (045.005);
2. Not store garbage on my property for more than seven (7)
days (040.030);
3. Haul my garbage to an approved disposal site not less than
once every seven (7) days (050.080), (050.145):
EXHIBIT |
49
|
|
:
|
.
4. Prevent littering and nuisances at the loading point, during
transport, and at the disposal site (050.015);
5. Tightly cover the waste and the vehicle during transport to
the disposal site (050.045); and
6. Haul only my own garbage and not provide garbage
service to any other person (050.010), (050.025).
I agree and understand that I must maintain receipts or provide other
proof that my garbage was disposed of at an approved disposal site.
I agree and understand that if I fail to comply with any of the above-
listed conditions, this exemption may be revoked and I will be
required to subscribe to regular garbage service. | further agree and
understand that this exemption is not transferable from person to
person or from parcel to parcel.
Address: 395 Puma Drive, Carson, Nevada 89704
Assessor’s Parcel No.: 050-403-16
Telephone # 883-0404
Date: 11-23-92 Signature: __/s/
FOR STAFF USE ONLY
Reviewed and approved by: _/s/
Exemption # 0186C
Notes: Date: 12/8/92
50
RENO WASHOE COUNTY SPARKS
NEVADA
DISTRICT HEALTH DEPARTMENT
June 9, 1994
Re: 0186C
Dear Darrel and Mary Reed:
Sometime ago, at your request, an exemption from garbage service
in the unincorporated areas of Washoe County was approved by this
department and a pink copy should still be in your possession. This
exemption process is provided for in Section 90.037 of the Washoe
County Ordinance No. 838, Bill No. 1013, effective December 2,
1991, and the amended Ordinance No. 848. Bill No. 1023, effective
April 28, 1992.
When you placed your signature on the exemption you agreed to the
six (6) conditions listed, number three being that you would haul your
garbage to an approved disposal site not less than once every seven
(7) days (050.015 and 050.145). In order for the exemption to
remain in force, it was necessary for you to receive disposal receipts
each week from the landfill and submit them to the franchised
disposal company along with your quarterly statement to have your
account credited for that quarter.
On the exemption form, above your signature, it states in part “I
agree and understand that if I fail to comply with any of the above
listed conditions, this exemption may be revoked and J will be
required to subscribe to regular garbage service". Records from the
disposal company indicate that you have not complied with the
exemption conditions.
EXHIBIT 2
51
Within fifteen (15) days from the receipt of this letter, you must
submit a written response explaining why your exemption should not
be revoked. Please mail to Washoe County District Health
Department, Attention: Bob Sack, Environmental Health Services,
P.O. Box 11130, Reno, NV 89520. If you tail to reply within the
fifteen day period, this letter will serve as your NOTICE OF
REVOCATION of your exemption and you will be required to take
service from the franchised disposal company in your area.
Sincerely,
/s/
Carl R. Cahill, Director
Environmental Health Services
CRC:jd |
cc: Tom Green, Reno Disposal Company
1001 EAST NINTH STREET/P.O. BOX || 130, RENO, NEVADA
89520 (702)328-2400 FAX (702) 328-2279 .
52
APPENDIX F
MARC PICKER, ESQ., LTD.
417 West Plumb Lane
Post Office Box 3344
Reno, NV 89504
(702) 324-4533
Attorney for Individuals for
Responsible Government, Inc.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
—
INDIVIDUALS FOR
RESPONSIBLE GOVERNMENT
INC., a non-profit Nevada
corporation; JANICE BUSE,
HILARY BURSON, and
JUNE LINK, individuals,
Plaintiffs,
vs.
WASHOE COUNTY BY AND
THROUGH THE BOARD OF
COUNTY COMMISSIONERS
OF THE COUNTY OF
53
Case No. CV-N-94-526-ECR
AFFIDAVIT OF CLARA
FELLS IN SUPPORT OF
PLAINTIFF’S OPPOSITION
TO DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT AND
. Qe -
Tyee Oe) a mes wren bs epee er
WASHOE, CHAIRMAN PLAINTIFF’S
DIANNE CORNWALL, VICE CROSS-MOTION FOR
CHAIRMAN LARRY BECK, SUMMARY JUDGMENT
MCDOWELL, STEVE
BRADHURST; and
INDEPENDENT SANITATION
CO., INC., a Nevada corporation,
Defendants.
STATE OF NEVADA )
COUNTY OF WASHOE . a4
Comes now CLARA FELLS, being du y sworn, deposes and
Says:
a I have resided at 1475 East 10th Street, Reno, in Washoe
County and have lived in Washoe County since 1955.
y I My late husband and I operated “Speedy Pick-Up Service,” a
competing business with Independent Sanitation from 1959 through
the present time.
3. Prior to the enactment of monopoly !ranchise ordinances by
the Washoe County Council Speedy Pick-Up was providing trash and
garbage collection services in the unincorporated portions Washoe
54
County, including Lemmon Valley, Sun Valley and south into.
Douglas County.
4. At no time was Speedy Pick-Up Service given an opportunity
to bid on the franchise for collection of trash and garbage from the
unincorporated areas of Washoe County.
5. Speedy Pick-Up Service purchased garbage trucks to meet the
requirements of Reno City Ordinance 5.28.040 while serving
Lemmon Valley and Sun Valley. However, the Washoe County
Franchise was enacted shortly thereafter, torcing Speedy to pay for
the vehicles while being denied the opportunity to serve and compete.
6. Speedy Pick-Up Service has been effectively eliminated from
competing with Independent Sanitation by the granting of non-bid
franchises with Washoe County, Reno, and Sparks.
3 Independent Sanitation has previously brought suit against
Speedy Pick-Up Service and my late husband Ellis Fells for
continuing to pick-up trash. See Complaint. tile stamped February
5, 1971, attached as Exhibit | to this Affidavit. A subsequent opinion
by the then District Attorney, now Supreme Court Justice Robert
55
Rose, determined that the County and Independent Sanitation had
exceeded their authority by including trash within the franchise.
Letter of District Attorney to Board of Commissioners, dated
September 7, 1971, and marked as Exhibit 2 to this Affidavit.
8. The statutory definition of garbage has been interpreted by the
Washoe County District Board of Health to include any trash which
has come into contact with food. By this definition, and the granting
of a monopoly to Independent Sanitation, Speedy Pick-Up Service is
in violation of the exclusive franchise granted to Independent
Sanitation any time that construction workers leave food ides in
with the construction site debris.
9. Through operation of the Lockwood) Dump and the Reno
Transfer Station, sister companies of Indepenclent Sanitation monitor
all trash delivered by any competitor to Independent Sanitation and
Reno Disposal. This position allows Independent Sanitation to
monitor any attempt to compete with it.
10. A Reno City Ordinance (5.28.040) prohibits the transport of
any garbage within the City of Reno, thereby making any person who
56
delivers their own garbage to the Reno Transfer Station in violation
of Reno City Ordinances. Copy of Ordinanee 5.28.040 attached as
Exhibit 3.
11. I was present at the Washoe County Council meeting at which
the mandatory garbage collection ordinance was enacted. The several
members of the council, as well as Carl Cahill, the Director of the
Washoe County District Board of Health, stated that the main purpose
of the ordinance was to eliminate illegal dumping in the
unincorporated areas of the County.
12. ‘If not prohibited by the County, Speedy Pick-Up Service
would continue to offer service to cilizens residing in the
unincorporated portions of the County.
Executed on this 31" day of August, 1995.
Ls/
CLARA FELLS
Subscribed and sworn before me,
a notary public, this 31" day
of August, 1995.
Ls/
NOTARY PUBLIC
57
NO. 267523 DEPT. NO. 4
IN THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE
INDEPENDENT SANITATION,
a copartnership,
Plaintiff,
vs.
ELLIS R. FELLIS, doing
business as SPEEDY’S
PICK UP SERVICE,
Defendant.
Plaintiff alleges:
I
That at all times herein mentioned, plaintiff, INDEPENDENT
SANITATION, was and still and now is a copartnership consisting of
SAMUEL CARAMELLA, JACK B. CARAMELLA, JULIUS
BALLARDINI, BEN CARAMELLA and LAWRENCE F
DEVINCENZI.
EXHIBIT |
58
il
That at all times herein mentioned, the defendant, ELLIS R.
FELLIS, has been an individual doing business under the firm name and
style of “SPEEDY’S PICK UP SERVICE” in the County of Washoe,
State of Nevada.
Il
That on or about May 15, 1967, the County of Washoe, a
political subdivision of the State of Nevada, entered into a wnitten
agreement with plaintiff herein under the terms and provisions of which,
said County of Washoe granted to plaintiff the exclusive franchise for
the operation of a garbage and trash collection and disposal service
within the unincorporated areas of Washoe County, excluding therefrom
the areas of Incline Village General Improvement District and the
Horizon Hills General Improvement District, which said agreement
provided that the franchise thereby granted should continue for a period
of ten (10) years from the date thereof, subject to the right and option
of plaintiff to renew the same for an additional period of ten (10) years.
That said agreement is in full force and effect and plaintiff has at all
59
times fully complied with and performed all the terms and conditions
thereof.
IV
That the defendant, ELLIS R. FELLIS, doing business as
SPEEDY’S PICK UP SERVICE, his agents, servants and employees
have since the granting of said franchise to plaintiff collected, hauled and
disposed of garbage and trash in the unincorporated areas of Washoe
County covered by said plaintiff's franchise in violation of plaintiff s
exclusive rights under the franchise agreement hereinabove referred to:
that plaintiff is informed and believes and upon such information and
belief alleges that if plaintiff is not granted the relief requested herein.
the defendant will continue to collect, haul and dispose of garbage and
trash in violation of plaintiff's exclusive rights to do so in the
unincorporated areas of Washoe County covered by said franchise
agreement.
V
That as a proximate result of defendant's actions, plaintiff has
lost customers and accounts for the collection of garbage and trash in
60
heites aalttitiies ene ante a slats Pm a Sted’ eee al ln 0 AB
the unincorporated areas of Washoe County specifically covered by the
franchise agreement hereinabove referred to, that plaintiff is informed
and believes and upon such information and belief alleges that as a
proximate result of defendant's actions, plaintiff has lost profits in
excess of the
61
WASHOE COUNTY
COURTHOUSE
RENO, NEVADA 89505
Robert E. Rose
District Attorney
September 7, 1971
Board of Commissioners
of Washoe County
Courthouse
Reno, Nevada
Re: Independent Sanitation Co. Garbage Franchise
Gentlemen:
An opinion has been requested from this office concerning the validity
of an exclusive garbage and trash franchise awarded to Independent
Sanitation Co. by Washoe County in 1967.
Because the Commissioners are familiar with the background of the
award of the franchise, this opinion will not review in detail the minutes
leading to the award. However, it has been argued that the award of the
franchise is invalid because of a lapse of more than thirty (30) days
between the “Invitation to Bid” and the award of the franchise. This
argument is based upon a misinterpretation of Ordinance No. 135 and
is therefore invalid. Ordinance No. 135, Sec. 3(d) provides that the
Board may not grant the franchise in “less that thirty (30) days after the
publication of the “Invitation to Bid’...” This means that the Board may
grant the franchise more than thirty (30) days after publication of the
“Invitation to Bid” but may not grant it within the thirty (30) day period.
It has also been contended that the agreements entered into between
EXHIBIT 2
62
Independent Sanitation Co. and Mr. Hulbert of Lake Tahoe and Mr.
Franchi of Verdi violate paragraph 11 of the franchise agreement
prohibiting assignment, sale or transfer of any portion of the franchise.
This theory is incorrect, since these agreements were entered into propr
to the execution of the agreement and were specifically made a
condition of the award of the franchise at the meeting of February 27,
1967. In other words, at the direction of the Board, these agreements
were entered into prior to the effective date of paragraph 11 of the
franchise agreement and are not covered thereby
It is the opinion of this office that Washoe County is bound by the
franchise agreement and may not, four-and-one-half (4'2 ) years after it
was awarded, unilaterally declare the franchise void, as it pertains to
garbage collection and disposal, for procedural irregularities in its
award. If such irregularities existed, Washoe County is as much to
blame as Independent Sanitation Co., which is and has invested capital
and operated for four-and-one-half (4% ) years in reliance on the
franchise. By its granting of the franchise with full knowledge of the
facts, Washoe County waived any procedural irregularities and is
estopped from now terminating the franchise on those grounds. To do
so would, in the opinion of this office, subject the County to liability for
substantial damages, including, but not limited to, a claim for profits for
the remaining five-and-one-half (5% ) years of the franchise.
It appears to this office that certain provisions of the franchise
agreement have been breached by Independent Sanitation Co., as
follows:
l. Paragraph 4, providing for monthly payment of the franchise fee
has not always been observed.
N
Paragraph 5, providing for an annual statement of all customers
of Independent Sanitation Co., attested as being correct by a
representative of the company, has not been observed. At any
rate, this office has been unable to find such a statement on file
with the County.
63
3. Although no breach of paragraph 6, concerning rates, is Clearly
shown, this office would recommend that the County Manager
review with Independent Sanitation Co., their practices with
regard to rates for trash collection to determine if such practices
are in accordance with the agreement.
4. Paragraph 7 requires the posting of a penal bond in the sum of
$10,000.00. This office has received a letter dated August 31,
1971, from Comstock Insurance Agencies, Inc., Stating that the
bond is in full force and effect and the premium has been paid
for the anniversary period of 4-30-71 to 4-30-72. However, it
is recommended that the County request that a bond renewal
certificate be filed with the Clerk annually.
It is recommended that, pursuant to the direction of the Board, this
office immediately send a letter to Independent Sanitation Co.,
demanding that within ten (10) days, Independent Sanitation Co., begin
the work of compliance, in accordance with paragraph 13 of the
agreement. Clearly, in view of the provisions of paragraph 13, requiring
written notice of breach and demand for compliance, the breaches of the
agreement set forth above do not justify unilateral termination of the
agreement by the County.
It is the opinion of this office that the exclusive franchise agreement is
void insofar as it purports to grant and exclusive franchise for the
collection and disposal of trash. NRS 244.187, Washoe County
Ordinance No. 135 and the “Invitation to Bidders” for the franchise all
refer to and are limited to collection and disposal of garbage. Only the
franchise agreement, prepared by the attorneys for Independent
Sanitation Co., refers to trash collection and disposal. It is the opinion
of this office that the Board of Commissioners «ire empowered only to
grant an exclusive franchise for garbage collection and disposal and not
trash. Therefore, the County is without power to deny applications for
business licenses for trash collection based upon the existence of an
exclusive franchise for trash collection.
64
Very truly yours,
Chan G. Griswold
Chief Civil Deputy
CGG:am
65
5.28.040
GARBAGE, RUBBISH, WASTE 5.28.040
Exclusive right to collect garbave in city. The City, its
duly authorized agents, servants, employees or
contractees, or the agents or employees of any such
contractees, shall have the exclusive right to gather and
collect and haul garbage within the city, and it shall be
unlawful for any person to collect, dispose of or
transport, carry or convey throu xh the streets, alleys or
public thoroughfares of the city, any garbage or to
collect or dispose of same. (Prior Code §9-48 (part)).
EXHIBIT 3
66
APPENDIX G
MARC PICKER, ESQ., LTD.
417 West Plumb Lane
Post Office Box 3344
Reno, NV 89504
(702) 324-+533
Attorney for Individuals for
Responsible Government, Inc.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
x *
~
INDIVIDUALS FOR Case No. CV-N-94-526-ECR
RESPONSIBLE GOVERNMENT
INC., a non-profit Nevada
corporation; JANICE BUSE,
HILARY BURSON, and
JUNE LINK, individuals,
Plaintiffs,
VS. AFFIDAVIT OF JANICE
BUSE IN SUPPORT OF
WASHOE COUNTY BY AND
THROUGH THE BOARD OF
COUNTY COMMISSIONERS
OF THE COUNTY OF
PLAINTIFF’S OPPOSITION
TO DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT AND
WASHOE, CHAIRMAN PLAINTIFF’S
DIANNE CORNWALL, VICE CROSS-MOTION FOR
CHAIRMAN LARRY BECx, SUMMARY JUDGMENT
MCDOWELL, STEVE
BRADHURST; and
INDEPENDENT SANITATION
CO., INC., a Nevada corporation,
Defendants.
STATE OF NEVADA )
) Ss.
COUNTY OF WASHOE _)
Comes now JANICE BUSE, being duly sworn, deposes and
Says:
l. I have resided and continue to reside at | 1325 Chestnut Street,
in the unincorporated area of Washoe County, since 1979,
ye I was present at a meeting before the Washoe County District
Board of Health (see article with McIntyre, county manager)
regarding the recently enacted mandatory collection ordinance held in
1992. The several members of the Board. as well as Carl Cahill, the
Director of the Washoe County District Board of Health, stated that
the main purpose of the ordinance was to eliminate illegal dumping
68
ett lls lin I a A cl ce ll Ny a a 2 ee a ee
in the unincorporated areas of the County. Also attached as Exhibit
| is a copy of a news article dated March 27, 1995, written by Steven
Brown, the then Chairman of the Washoe District Board of Health,
and published in the Reno Gazette-Journal, citing illegal dumping as
a primary reason for the adoption of a mandatory garbage ordinance.
_ In response to citizen protests, an Illegal Dumping Task Force
was established by the Washoe County Commission to seek to educate
to the public as to the need for proper disposiil of trash and garbage
and to seek the assistance of the public, the law enforcement and
health authorities and the judiciary to enforce the anti-dumping
ordinances and statutes.
4. I served as a member of the Task Force appointed by the
Washoe County Council. A true and correct list of the Task Force
membership, along with agendas from the July 22 and August 20,
1992 meetings, and a summary of the July 22. 1992 meeting dated
July 23, 1995, are attached as Exhibit 2 to this Affidavit. A primary
purpose of the Task Force was to develop meiins to reduce the illegal
dumping of garbage and trash in the County. The Task Force
69
a ee ne enna
organized citizen watch programs to assist law enforcement and health
officials in apprehending those responsible for the illegal dumping.
~ Task Force members met with law enforcement and judicial
officials to ensure that the efforts of private-citizens to undertake a
significant role in eliminating or reducing illeyal dumping would be
met with proper enforcement actions. Task Force members were
assured by both judicial and enforcement personnel that the full
measure of penalties provided by law would be sought in all cases of
illegal dumping.
6. News articles relating to the enforcement of anti-dumping
statutes and ordinances are attached and included as Exhibit 3 to this
Affidavit. None of the individuals apprehended received a fine
exceeding one-half of the maximum fine allowed by law (Reno
Gazette-Journal, April 14, 1995, page IA).
wa The Task Force has not met in over one year, and the County
has shown little further interest in the enforcement and prosecution of
its anti-dumping ordinances or the state laws on this matter.
8. Attached is a true and correct copy of «i news article from the
70
Reno Gazette-Journal, dated May 21, 1994, which lists the location
of six known illegal dumps within Washoe County, and details the
failure of the County to take effective action to entorce its ordinances
or the state laws on dumping. This article is written several years
after the initiation of mandatory trash collection service, which was
supposed to remove this blight from our desert.
9. Attached to this Affidavit as Exhibit 4 1s a news article dated
July 24, 1991, from the Reno Gazette-Journal is to the imposition of
a $1.25 per month fee for the collection of curbside recycling. This
fee is included in the regular quarterly billings from Independent
Sanitation, regardless of any use of the collection service. As I take
all of my recyclable materials into the recycling centers for my own
use or donate recyclables to charitable organizitions, I have not used
this service and do not intend to use this service. Consequently,
Independent Sanitation bills me every quaricr for the privilege of
retaining my own property.
Executed on this 31" day of August, |
LS/
JANICE BUSE
Subscribed and sworn before me.
a notary public, this 31" day
of August, 1995.
lS/
NOTARY PUBLIC
72
995.
SS
Reno Gazette-Journal Friday. March 27, 1992--13A
One Man’s View
Stop illegal dumping, get garbage picked up
By Steven Brown
Chairman. Washoe District Board of Health
Managing our solid waste is one of the niajor issues facing local
government in the 1990s.
There is a critical need to protect our cnvironment and quality
of life. We should all be outraged by the illegal iumping that occurs on
t he public lands of our county.
The illegal dumping of household garbay is not only an eyesore,
but an environmental and health disaster. Thivse sites are a breeding
ground for vermin and rodents spreading diseise This dumping may
ultimately contaminate groundwater many vi us depend upon for
domestic purposes.
Who pays for the cleanup of this illegal dumping? You and I do!
When the U.S. Forest Service and the BLM clean up these sites, it is our
tax dollars being spent. Several of these sites may require monitoring
for years. Again, you and I will foot the bill.
In 1991, the District Health Department adopted a Solid Waste
Management Plan for Washoe County to respond to these concerns. In
the plan there was a recognition for the need to adopt an ordinance
establishing mandatory garbage collection within specified
unincorporated areas of the county.
Most of the unincorporated population is concentrated in
neighborhoods with densities similar to Reno anc! Sparks. The cities of
Reno and Sparks have had mandatory collection since 1966. The
Incline Village General Improvement District has iad mandatory service
from its inception.
Three-quarters of the households in the » ecified unincorporated
EXHIBIT |
73
area currently have weekly collection. The majority of those households
subscribe to the highest level of service.
There has been a lot of talk about rights and mandatory service.
What about the rights of the majority of those households that currently
have collection? Don’t they have a right to a neighborhood and
community free of the degradation of illegal dumping? With rights
come responsibilities. A responsibility to our neizhbors and community.
The real issue here is finding the most cost-effective and efficient
way to deal with the illegal dumping and the debasing of our
environmental and community health standards
It is obvious that all households do not venerate a like amount
of garbage on a weekly basis. The current proposal allows for three
levels of service. The basic service will be one can per week.
With mandatory service, residents wil! be entitled to the free
disposal of large items such as furniture and appliances at the landfill.
Additionally, the franchisee will continue to support Community-based
cleanup projects.
There are other benefits of a mandatory service to our
community:
@/t will reduce and stabilize the cost of \waste removal.
#it will benefit recycling efforts by consolidating the waste
stream and establishing a collection process
®t will reduce spillage and litter from lnproperly covered self-
haul vehicles.
@it will reduce traffic to the transfer station and the landfill,
resulting in a net reduction in vehicle air pollutants
Let’s do the right thing.
74
EDUCATION SUBCOMMITTEE
Lois Aicholtz
Elizabeth Anderson
Carl R. Cahill
~ Alicia Chisman
David Farside
Pat Fladager
Mark Franchi
Linda Jones
Linda Mitchell
Russell Mix
“J” Parker
Lorna Price
Norman Rosenberg
Susan Skinner
Vernon Stallard
EXHIBIT 2
75
ENFORCEMENT SUBCOMMITTEE
Hilary Burson
Janice Buse
Karla Butko
Rick Dougherty
Gregg Finkler
Jim Ganyon
Skip Houk
Jeanne Johnson
Rich Kishpaugh
Clyde Murray
Dave Patula
Joe Canfield
David Freitas
- Robert-Mays
Bob Schultz
CLEAN UP GROUP
77
ILLEGAL DUMPING TASK FORCE
AGENDA
~ Jaty22, 1992 ©
5:30 pm
Introduction
Large Group vs. Action Groups
Establish goals and action plans
Adjourn 7 pm
78
We Ee
pen ee ce
WASHOE COUNTY
“To Protect and To Serve”
OFFICE OF FHE-COUNTY MANAGER- -— 1004 £-9" STREET
POST OFFICE BOX 11130
RENO, NEVADA 89520-0027
PHONE (702) 328-2000
July 23, 1992
TO Illegal Dumping Task Force
From: JOHN SHERMAN
Subject: July 22, 1992 Meeting
After introductions and reason for bringing the vroup together, members
of the Task Force spent some time on a brainstoi ming session regarding
possible solutions to the problem of illegal « umping. The following
points were discussed.
aincentives: free pickup with clean up
#Enforcement
sidentification: service people, neighbors
=Pictures of illegal dumpers in paper
sLocation of illegal dumps: public property, private property
= Types of trash/garbage: household waste, furniture, lawn clippings,
junk cars, etc.
@SPPC: neighborhood watch program
= Junk Car hauling program in Sun Valley as model
@ Education
= Prevention
= Nevada Revised Statutes: fire danger on lots. bill on property tax
® Work with media
® Need to know statutes/ordinances
=People from local area need to know CC&R’'s and their impact; who
enforces
®@ Mechanism for removing junk cars
79
DT ane ete na eg
a oe ee
® Public service announcement against illegal dumping
@ Educate Municipal and Justice Court Judges on issue
"Guidelines for making a complaint ,
"Bureau of Land Management fines for illega! dumping too low
Subsequent to the brainstorming session, the Task Force divided into
three working groups: Cleanup, Education and Enforcement.
CLEAN UP
Focus: hands on programs; quarterly “field work”
Goals:
®Design Program for October adopt a spot
®Honor camp/kids at risk/jail/Wittenberg Hall for cleanups
® Coordinating manpower
EDUCATION
Focus: program(s) to enhance clean culture
Goals:
"Complete homework assignments for next meeting
ENFORCEMENT
Focus: what works; bring facts together; coordination
Goals:
®Standardize reporting form used by enforcement agencies (police,
sheriff, health dept., zoning enforcement)
=Improve District Health Dept. follow up
"Increase citizen reporting without becomine a police state
®Publication of offenders/enforcement efforts penalties
"Use alternative sentencing for offenders
®improve coordination between District Attorney efforts with City
80
Attorney's
NOTE..NOTE..NOTE..NOTE
following dates: ==
®Clean up: July 29 @ | pm
@Enforcement: August 5 @ 5:30 pm
= Education: August 10 @ 5:30 pm
These meetings will be used to refine the goals/objectives of each area
of interest and to develop action plans. The next meeting of the entire
Task Force will be held in the Caucus room on August 26 at 5:30 pm.
8]
WASHOE COUNTY
“To Protect and To Serve”
OFFICE OF THE.COUNTY MANAGER —to0TE 9’ STREET
POST OFFICE BOX 11130
RENO, NEVADA 89520-0027
PHONE (702) 328-2000
August 20, 1992
TO: Illegal Dumping Task Force
From: John Sherman
Subject: August 26, 1992 Meeting
Please find attached the agenda for the August 26. |992 meeting of the
Illegal Dumping Task Force. Also inclosed for your information are:
™Selected Nevada Revised Statutes concerning illegal dumping.
®Information needed when reporting illegal dumping to the District
Health Department.
# District Health Department definition of illegal dumping.
® Information on Wester Nevada Clean Communities. Inc.
#Reno Gazette-Journal editorial on littering.
82
ILLEGAL DUMPING TASK FORCE
AGENDA
August 26, 1992
5:30 pm
ss — ee oe eee -_—— — = = —
Reports from subcommittees
Identification of Task Force goals and action plans
Future direction: what next?
Adjourn 7 pm
NEVADA REVISED STATUTES
CRIMES AGAINST PUBLIC HEALTH AND SAFETY
202.180 Deposit of unwholesome substance;-carrying i
on business detrimental to public health on or near route of public
travel.
Every person who:
1. Shall deposit, leave or keep, on or near a highway or route
of public travel, on land or water, any unwholesome substance:
2. Shall establish, maintain or carry On, upon or near a highway
or route of public travel, on land or water, any business, trade or
manufacture which is detrimental to the public health; or
3. Shall deposit or cast into any lake, creek or river, wholly or
partly in this state, the off! from or the dead body of any animal:
shall be guilty of a gross misdemeanor
202.185 Unlawful deposit of dead animal, dirt,
garbage or rubbish on public highway; penalty.
1. As used in this section:
(a) “Dead animals” means all dead animals or parts thereof.
including condemned mets. not intended to be used as food.
(b) “Dirt” includes loose earth, ashes, manure from barns,
Stables, corrals and pens, o!Tal from butcher houses and slaughterhouses,
and all foul and
84
public highway, any dead animal, dirt, garbage or rubbish as defined in
subsection 1.
3. Any person violating the provisions of this section shall be
guilty of a misdemeanor.
COLLECTION AND DISPOSAL OF SOLID WASTE
444.440 Declaration of state policy. It is hereby
declared to be the policy of this state to regulate the collection and_
disposal of solid waste in a manner that will:
. Protect public health and welfare.
Prevent water or air pollution.
. Conserve natural resources.
. Enhance the beauty and quality of the environment.
No
~~ WwW
444.583 Unlawful disposal of motor vehicle battery,
motor vehicle tire or motor oil; penalty; plan for appropriate
disposal; exemption.
1. Except as otherwise provided in subsection 5, it is unlawful
willfully to:
(a) Dispose of, abandon or dump a motor vehicle battery, motor
vehicle tire or motor oil at any site which has not been issued a permit
for that purpose by the state department of conservation and natural
resources;
(b) Dispose of, abandon or dump a motor vehicle battery, motor
vehicle tire or motor oil at a sanitary landfill or other disposal site
established by a municipality which has not been issued a permit for that
purpose by the state department of conservation and natural resources;
or
(c) Incinerate a motor vehicle battery or motor vehicle tire as a
means of ultimate disposal, unless the incineration is approved by the
department for the recovery of energy or other appropriate use.
2. A person who violates the provisions of subsection | is guilty
of a misdemeanor and shall be punished by a fine of not less than $100
per violation.
3. The department shall establish a plan for the appropriate
85
disposal of used or waste motor vehicle batteries, motor vehicle tires
and motor oil. The plan must include the issuance of permits to approve
sites of facilities for the disposal of those items by the public. The plan
_ May include. coordination withthe office of community service within
the governor’s office for the education of the public regarding the
necessity of disposing of these items properly and recycling them.
4. The department shall encourage the voluntary establishment
of authorized sites which are open to the public for the deposit of used
or waste motor vehicle batteries, motor vehicle tires and motor oil.
5. The provisions of subsections | and 2 do no apply to the
disposal of used or waste motor vehicle batters or motor vehicle tires if
the unavailability of a site that has been issued a permit by the state
department of conservation and natural resources makes disposal at
such a site impracticable. The provisions of this subsection do not
exempt a person from any other regulation of the department
concerning the disposal of used or waste motor vehicle batteries or
motor vehicle tires.
UNLAWFUL DISPOSAL OF GARBAGE OR SEWAGE
444.630 Penalty; enforcement; identification of
violator.
1. As used in this section, “garbage” includes swill, refuse, cans,
bottles, paper, vegetable matter, carcass of any dead animal, offal from
any slaughter pen or butcher shop, trash or rubbish.
2. Every person who willfully places, deposits or dumps, or who
causes to be placed, deposited or dumped, or who causes or allows to
overflow, any sewage, sludge, cesspool or septic tank effluent, or
accumulation of human excreta, or any garbage, in or upon any street,
alley, public highway or road in common use, or upon any public park
or other public property other than property designated or set aside for
such a purpose by the governing body having charge thereof, or upon
any private property into or upon which the public is admitted by
easement, license or otherwise, is guilty of a misdemeanor and, if the
convicted person agrees, he shall be sentenced to perform 10 hours of
work for the benefit of the community under the conditions prescribed
86
in NRS 176.087.
3. Except as otherwise provided in NRS 444.585, ownership of
garbage does not transfer from the person who originally possessed it
solid waste pursuant to this chapter or until it is disposed of at a
municipal disposal site. Identification of the owner of any garbage
which is disposed of in violation of subsection 2 creates a reasonable
inference that the owner is the person who disposed of the garbage.
The fact that the disposal of the garbage was not witnessed does not, in
and of itself, preclude the identification of the owner.
4. All health officers, game wardens, police officers of cities and
towns, sheriffs and their deputies, and other peace officers of the State
of Nevada shall, within their respective jurisdictions, enforce the
provisions of this section.
5. A district health officer or his deputy may issue a citation for
any violation of this section which occurs within his jurisdiction.
6. To effectuate the purposes of this section, the persons
charged with enforcing this section may request information from any:
(a) Agency of the state or its political subdivisions.
(b) Employer, public or private.
(c) Employee organization or trust of any kind.
(d) Financial institution or other entity which is in the business
of providing credit reports.
(e) Public utility.
Each of these persons and entities, their officers and employees, shall
cooperate by providing any information in their possession which may
aid in the location and identification of a person believed to be in
violation of subsection 2. A disclosure made in good faith pursuant to
this subsection does not give rise to any action for damages for the
disclosure.
SANITATION
444.635 Civil penalties; collection; use of money
restricted
1. Any person convicted of violating NRS 444.555 and, in
87
until it is received for transport by_a_nerson_authorized to dispose-of ——
addition to the penalty imposed in NRS 444.583 or 444.630, any person
convicted of violating NRS 444.583 or 444 630 is liable for a civil
penalty, upon each such conviction. = i
“ 2: Every court, before whom a defendant is convicted of a
violation of NRS 444.555, 444.583 or 444.630, shall order the
defendant to pay a civil penalty which is at least $250 but not more than
$2,000. If so provided by the court, the penalty may be paid in
installments.
3. The health authority or division of environmental protection
of the state department of conservation and natural resources may
attempt to collect all such penalties and installments which are in default
in any manner provided by law for the enforcement of a Judgment.
4. Each court which receives money under the provisions of this
section shall forthwith remit the money to the division of environmental
protection or, if the health authority initiated the action, the district
health department which shall deposit the money with the state treasurer
for credit in a separate account in the state general fund or with the
county treasurer for deposit in an
account for the district health department, as the case may be. Money
SO deposited must be used only to pay rewards pursuant to NRS
444.640 or for the management of solid waste and paid as other claims
against the state or local governments are paid.
(Added to NRS by 1987, 1490; A 1991, 673)
444.640 Reward for information leading to arrest and
conviction of violator;
regulations
1. The division of environmental protection of the state
department of conservation and natural resources or the district health
department shall offer a reward. in an amount equal to 50 percent of the
civil penalty imposed pursuant to NRS 444 635, for information leading
to the arrest and conviction of any person violating NRS 444.555 or
444 630. The reward must be paid upon his conviction and the payment
in full of the penalty. The reward must be distributed equally among the
persons who supplied the information which led to the arrest and
conviction.
88
2. The state environmental commission or district board of
health may adopt regulations necessary to carry out the provisions of
this section.
TRAFFIC LAWS
484.397 Police officer authorized to remove certain
vehicles
1. Whenever any police officer finds a vehicle standing upon a
highway in violation of any of the provisions of this chapter, such officer
may move such vehicle, or require the driver or person in charge of the
vehicle to move it to a position off the paved or improved or
main-traveled part of such highway.
2. Whenever any police officer finds a vehicle unattended upon
any highway, bridge or causeway, or in any tunnel where such vehicle
constitutes an obstruction to traffic, such officer may provide for the
removal of such vehicle in any manner provided by law.
3. Any police officer may remove any vehicle or part of a vehicle
found on the highway, or cause it to be removed, to the nearest garage
or other place of safekeeping if.
(a) The vehicle has been involved in an accident and is so
disabled that its normal operation is impossible or impractical and the
person or persons in charge of the vehicle are incapacitated by reason
of physical injury or other reason to such an extent as to be unable to
provide for its removal or custody, or are not in the immediate vicinity
of the disabled vehicle;
(b) The person driving or in actual physical control of the vehicle
is arrested for any alleged offense for which the officer is required by
law to take the person arrested before a proper magistrate without
unnecessary delay; or
(c) The person in charge of the vehicle is unable to provide for
its custody or removal within:
(1) Twenty-four hours after abandoning the vehicle on
any freeway, United States highway or other primary arterial highway.
(2) Seventy-two hours after abandoning the vehicle on
any other highway.
89
484.465 Putting glass or other injurious substance on
highway prohibited
1. No person shall throw or deposit upon any highway any glass
bottle, glass, nails, tacks, wire, cans or any other substance likely to
injure any person, animal or vehicle upon such highway.
2. Any person who drops, or permits to be dropped or thrown,
upon any highway any destructive or injurious material shall immediately
remove the same or cause it to be removed.
3. Any person removing a wrecked or damaged vehicle from a
highway shall remove any glass or other injurious substance dropped
upon the highway from such vehicle.
REPAIR, REMOVAL AND DISPOSAL OF VEHICLES
ABANDONED VEHICLES
487.205 Legislative findings and declaration
1. The legislature finds that:
(a) Abandoned vehicles constitute a safety hazard and a public
nuisance and are detrimental to the health, safety and welfare of the
general public.
(b) Such vehicles produce scenic blight which degrades the
environment and adversely affects the proper maintenance and
continuing development of the state.
(c) Such vehicles represent a resource out of place, requiring
state and local governmental attention in order to ensure their
expeditious removal and recycling.
2. The legislature declares that the policy of this state is:
(a) To prohibit the abandonment of vehicles and to enforce such
prohibition with adequate penalties.
(b) To encourage the development of procedures and
operational techniques which will facilitate the expeditious removal of
abandoned vehicles from public and private premises.
(c) To encourage state and local governmental units, in
cooperation with the private sector to recover the resource represented
by abandoned vehicles to the fullest extent practicable.
487.220 Person responsible for cost of removal and
disposition of abandoned vehicles; presumption vehicle abandoned
by registered owner
1. Every person who abandons a vehicle is responsible for the
cost of removal and disposition of such vehicle.
2. An abandoned vehicle is presumed to have been abandoned
by the registered owner thereof. The registered owner may not rebut
this presumption by showing that he transferred his interest in the
abandoned vehicle unless he complied with the provisions set forth in
NRS 482.399 to 482.420, inclusive.
487.230 Removal of abandoned vehicles
1. Any sheriff, constable, member of the Nevada highway patrol,
officer of the legislative police, investigator of the bureau of
enforcement of the registration division of the department, designated
employees of the manufactured housing division of the department of
commerce, special investigator employed by the office of any district
attorney, marshal or policeman of any city or town who has reason
reason to believe that a vehicle has been abandoned on public property
in his jurisdiction may remove the vehicle from that property. At the
request of the owner or person in possession or control of any private
property who has reason to believe that a vehicle has been abandoned
on his property, the vehicle may be removed by the operator of a tow
car or an automobile wrecker from that private property.
2. Any person who authorizes the removal of an abandoned
vehicle pursuant to subsection | shall:
(a) Have the vehicle taken to the nearest garage or other place
designated for storage by:
(1) The state agency or political subdivision making the
request, if the vehicle is removed from public property.
(2) The owner or person in possession of the property,
if the vehicle is removed from private property.
(b) Make all practical inquines to ascertain if the vehicle is stolen
by checking the license plate number, vehicle identification number and
any other available information which will aid in identifying the
registered and legal owner of the vehicle and supply the information to
91
the person who is storing the vehicle.
487.281 Unlawful abandonment of vehicle
1. A person shall not abandon a vehicle upon any public highway
or road.
2. A person shall not abandon a vehicle upon public or private
property without the express or implied consent of the owner or person
in lawful possession or control of such property.
487.290 Unlawful possession of unregistered vehicles
unfit for use; exceptions
1. Unless he first obtains a license pursuant to NRS 487.050 or
487.410, a person shall not for any reason keep more than two
unregistered vehicles on real Property owned by him or under his
Possession or control if the vehicles are no longer intended for or in
condition for lawful use on the highway.
2. The provisions of subsection 1 do not apply to:
(a) Premises used by a licensed dealer. manufacturer, distributor
or rebuilder.
(b) Vehicles to be restored or used as a source of parts in
conjunction with the operation or maintenance of a fleet of vehicles for
the carriage of persons or property.
(c) Premises used as a farm. ranch, mine or repair shop for
motor vehicles.
(d) Any person engaged in the restoration of one or more
vehicles entitled to registration as a Horseless Carriage or otherwise
having classic or historic significance.
HUNTING, FISHING AND TRAPPING
503.430 Water pollution: Deposit of substance
deleterious to fish or wildlife; penalties. Except as otherwise
provided in NRS 445A.615 or unless a greater penalty is prescribed by
NRS 459.600, every person who places or allows to pass, or who places
where it can pass or fall. into or upon any of the waters of this state at
92
any time, any lime, gas tar, slag, acids or other chemical, sawdust,
shavings, slabs, edgings, mill or factory refuse, sewage, garbage or any
substance deleterious to fish or wildlife is guilty of a misdemeanor for
the first offense and a gross misdemeanor for any subsequent offense.
Reno Gazette-Journal Sunday, August 16, 1992
Now’s the time to take pride and clean up this community
(Editorial opinion)
94
FIRST DRAFT: ILLEGAL DUMPING BROCHURE (TOPICS,
TONE)
What about regular household garbage service?
All areas within Washoe County have a special arrangement with a
waste hauler to provide garbage service to each home. For your weekly
curbside pick-up, if you live in:
Sparks, residents use the large wheeled toters provided by Sparks
Sanitation. You may place it along with one extra cubic yard of boxed,
bagged, or bundled waste on your curb each week for pickup
Reno, you may place one tightly-covered can plus one cubic yard of
boxed, bagged or bundled waste at your curbside each week.”
Incline Village, you may place one tightly-covered can plus one cubic
yard of boxed, bagged or bundled waste at your curb each week.*
Washoe County, they will collect one tightly-covered can full of
household garbage each week.*
*Extra service such as arranging for the pick-up of large amounts of
yard waste, or obtaining a large wheeled container are options available
to you.
To arrange for service, call:
Incline Village Independent Sanitation 831-2971
Reno Reno Disposal 329-9955
Sparks Sparks Sanitation 329-8822
Washoe County Disposal Services, Inc. 329-8822
What if I want to recycle?
As part of every household garbage service plan, residents may
participate in curbside recycling RSW Recycling provides each
residence with recycling bins, and will pick up recyclables every two
95
weeks with their special trucks according to your neighborhood
schedule. Here’s what’s taken in curbside recycling:
Green Bin: Glass (Any color, free of food wastes, with labels, no
lids)
Yellow Bin: Aluminum Cans
Tin Cans
Plastic Bottles
(Free of food wastes, with labels, no lids)
Newspapers and Magazines: Should be put in a grocery sack and placed
on top of the yellow bin.
Other recycling and redemption centers exist in Washoe County, such
as newspaper collection boxes which benefit various local agencies.
Please consult the Nevada Bell phone directory or call Western Nevada
Clean Communities for more information and locations.
I've got some big, bulky stuff to get rid of. Where can I do that?
If it’s in good condition, think about selling or donating it. If not, then
take advantage of the free dumping offered!
Free Dumping:
for household appliances, like washers, dryers, refrigerators,
water heaters,
plus mattresses, box springs, and sofas.
Where:
Lockwood Landfill, anytime. Open 7 days a week, from 8:00 until
4:30
Transfer Stations, first weekend in January, April, July, and October
How do I get rid of this old car? Isn't it expensive?
No! Is it on private property that you own or occupy? Do you
have the title? Then call an auto wrecking company. Depending on the
vehicle’s condition and location, they may pick it up for free. If there’s
no title, then it may cost you a grand total of $15 to the Department of
96
Motor Vehicles to take care of it. The wrecking company will guide
you through the process and provide a free cost estimate.
And these tires?
250,000 tires are generated as waste in our county every year.
They are accepted at the Lockwood Landfill and at the Transfer
Stations for a small fee. For a regular car tire, at press time, the fee is
$31 each at Lockwood and $.62 at the Transfer Stations. When you
replace your tires, the best thing to do is leave the old ones with your
tire dealer.
What about Building Materials?
Wood
Wood can be recycled. There are several wood recyclers
currently in operation in Was: e County -- check the Clean Line for
details. The folks at Lockwood Landfill will take clean wood (not a lot
of nails or other things attached) for free. They grind it up for use in a
clean-burning energy generation facility.
Construction Materials
If you’re planning a special project, contact your disposal
company to make arrangements to rent a large waste container. Local
agencies may also be accepting donations of surplus materials in good
condition for use in various community projects. Such gifts may be
considered a tax deduction. Call the Clean Line!
I've also got some old paint, motor oil, and other things to get rid of.
Motor oil, antifreeze, paint, car batteries, and many other wastes
are considered hazardous and must be handled carefully. They pose a
big threat to the quality of our water, among other things, if disposed of
improperly. Hazardous wastes are not accepted at the landfill, but there
are some options for automotive fluids and paint. Motor Oil and
antifreeze can be recycled, and there are convenient places to take it free
97
of charge. For old paint, open the can and allow it to dry, or paint it on
an old board to use it up. Once dry or empty, it can be put into your
regular garbage. Some groups are seeking donations of old paint as
well; call the Clean Line for details!
If you have questions on proper disposal of other potential hazards, call
the Nevada Hazardous Waste Hotline toll-free at 1-800-882-3233.
WANTED:
Your help to stop illegal dumping.
If you report an instance of illegal dumping,
and the report leads to a conviction,
then you may be eligible
for a reward.
To report illegal dumping, call your local sheriff
or police department, and the Washoe County
District Health Department at 328-2400
with the following information:
Location of dumping
License number of vehicle, if possible
Vehicle description
Suspect description
What is being dumped
COMMENTS? CALL ALICIA AT 328-3698. THANKS!
Reno Gazette-Journal
Today’s Topic: Illegal Dumping
Desert stakeouts latest effort to curb violators
Sheriff's deputies issue warnings, citations at sites
(Newspaper article)
EXHIBIT 3
99
Reno Gazette Journal Tuesday, April 14, 1992
County Government
Residents might haul own garbage
(Newspaper article)
Reno Gazette Journal Friday, August 13, 1993
Firm gets tough about garbage pickup
(Newspaper article)
Reno Gazette-Journal Friday, May 21, 1993
Environment
Disgusting” illegal dumping under fire
(Newspaper article)
Reno Gazette-Journal Thursday, September 16, 1993
Environment
Inmates clear illegal dumps on public land
(Newspaper article)
100
Reno Gazette-Journal Friday, April 14, 1995
(Newspaper article)
10]
Reno Gazette Journal Wednesday, July 24, 199]
County to start recycling trash
(Newspaper article)
EXHIBIT 4
102
APPENDIX H
PERTINENT NEVADA REVISED STATUTES
244.187 Displacement or limitation of competition:
Services
A board of county commissioners may, to provide adequate,
economical and efficient services to the inhabitants of the county and to
promote the general welfare of those inhabitants, displace or limit
competition in any of the following areas:
1. Ambulance service.
2. Taxicabs and other public transportation, unless regulated in
that county by an agency of the state.
3. Collection and disposal of garbage and other waste.
4. Operations at an airport, including but not limited to the
leasing of motor vehicles and the licensing of concession stands, but
excluding police protection and fire protection.
5. Water and sewage treatment, unless regulated in that county
by an agency of the state.
6. Concessions on, over or under property owned or leased by
the county.
7. Operation of landfills.
8. Construction and maintenance of benches and shelters for
passengers of public mass transportation.
244.188 Displacement or limitation of competition:
Areas in which authorized; methods; limitation
1. Except as otherwise provided in subsection 3, a board of
county commissioners may, outside the boundaries of incorporated
cities and general improvement districts:
(a) Provide those services on an exclusive basis or, by ordinance,
adopt a regulatory scheme for controlling the provision of those services
or controlling development in those areas on an exclusive basis, or
(b) Grant an exclusive franchise to any person to provide those
services
2. If services for the collection and disposal of garbage are
103
provided pursuant to subsection 1, the board of county commissioners
may, except as otherwise provided in subsection 3, require owners of
real property outside the boundaries of incorporated cities and general
improvement districts to receive and pay for those services.
3. The board of county commissioners may exercise the
authority provided in subsections 1 and 2 within the boundaries of a
general improvement district if that district:
(a) Is not authorized to provide those services; and
(b) Includes any real property within 7 miles from the boundary
of an incorporated city.
4. If an exclusive franchis - is granted or a regulatory scheme is
adopted for the mandatory collection and disposal of garbage and other
waste, the initial boundaries of the collection area must be the same as
the boundaries of an existing collection area under an exclusive franchise
or regulatory scheme.
5. The board of county commissioners may expand the
boundaries of a collection area established pursuant to subsection 4 after
the board has:
(a) Conducted preliminary studies and determined that the
proposed collection area is economically sound and feasible and
promotes the health, safety and general welfare of the inhabitants of the
county; and
(b) Held a public hearing on the proposed collection area after
giving notice of the time and the place of the hearing in a newspaper of
general circulation in that county. The notice must include the purpose
of the hearing and describe the boundaries of the proposed collection
area.
444.585 Ownership of recyclable _ materials;
unauthorized collection of recyclable materials prohibited; penalty;
civil remedy
1. From the time recyclable materials are placed in a container
provided by a private recycling business or the person designated by the
county or other municipality to collect recyclable materials:
(a) At curbside for collection: or
(b) At any other appropriate site designated for collection, the
_- 104
recyclable materials are the property of the private recycling business or
person designated by the county or other municipality to collect them,
as appropriate.
2. Any person engaged in the unauthorized collection of
recyclable matenials is guilty of a misdemeanor. Each such unauthorized
collection constitutes a separate and distinct offense.
3. As an alternative to the criminal penalty set forth in subsection
2, the county or other municipality, the private recycling business and
the person designated to collect the recyclable materials may
independently enforce the provisions of this section in a civil action. A
person who engages in the unauthorized collection of recyclable
materials is liable to the private recycling business or the person
designated to make such collections, as appropriate, for three times the
damages caused by the unauthorized collection.
PERTINENT WASHOE COUNTY ORDINANCES
SUMMARY: Establishes exclusive right to collect garbage within
portions of unincorporated area of county and mandates
use of garbage service within those areas.
BILL NO. 1013
ORDINANCE NO. 838
AN ORDINANCE AMENDING THE WASHOE COUNTY CODE
BY ESTABLISHING AN EXCLUSIVE RIGHT TO COLLECT
GARBAGE WITHIN THE PORTIONS OF THE
UNINCORPORATED AREA OF THE COUNTY; MANDATING
THE USE OF GARBAGE SERVICE WITHIN THOSE AREAS; AND
PROVIDING OTHER MATTERS PROPERLY RELATED
THERETO
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY
OF WASHOE DO ORDAIN
SECTION |. Chapter 90 of the Washoe County Code is hereby
10S
amended by adding thereto the provisions set forth as Sections 2 and 3
and amending Section 4 of this ordinance.
SECTION 2.
90.035
l. Except as provided in subsection 2, the county, its duly
authorized agents, servants, employees or contractees, or the agents or
employees of any of those contractees, have the exclusive right to
gather, collect and haul garbage within that part of the unincorporated
area in which garbage is currently being gathered, collected and hauled
and as that area may be expanded or contracted from time to time.
2. The right established pursuant to subsection 1 does not
apply to the gathering, collection and hauling of garbage within a
general improvement district which is authorized to provide that service
unless the board of trustees of the district has contracted with the
county to gather, collect and haul garbage on behalf of the district and
within the district’s boundaries.
SECTION 3.
90.037
1. Every owner of real property who accumulates or causes
the accumulation of garbage as defined in this chapter upon any
premises in the area described in section 90.035 must subscribe to the
collection, hauling and disposal of garbage pursuant to the provisions of
this chapter.
2. For purposes of determining whether garbage service
must be subscribed, it is presumed that every single-family dwelling, any
building containing rooms for sleeping and overnight accommodations,
every building or dwelling unit with a kitchen facility, and every business
permits good and drink to be sold, serve or consumed upon the
premises is accumulating or causing the accumulation of garbage upon
the premises. Any owner or occupant of dwelling units or business
establishments desiring to be exempt from garbage service, or claiming
that garbage is not being accumulated upon the premises, must have the
written approval of the district health officer, which approval shail not
be granted except upon the showing that garbage, as defined by this
106
chapter, is not being accumulated upon the premises and that no attempt
is being made to haul, bury or otherwise dispose of garbage in violation
of Chapter 90.
SECTION 4.
90.060 Establishing residential rates.
- For residential services, the franchise holder shall be
entitled to collect a garbage collection fee based upon the following
criteria:
(a) The charge for collection of garbage for residential areas
shall be a weekly basis and shall include one “designated container.” A
“designated container” shall be equal to a container not to exceed a
capacity of 32 gallons and 75 pounds in weight, or be a container
approved by the franchise holder. The rate for residential service
includes one designated container for garbage. The residential rate for
each “designated container” shall include, at no additional cost, the
removal of one cubic yard of rubbish or waster matter provided the
same is secured in boxes, bundles, disposable plastic bags, and other
such disposable eontainers which do not exceed 75 pounds in weight.
(b) When requested, the franchise holder shall provide more
frequent collections on a regular basis, and the rate for such additional
collections shall be agreed to in the same manner as commercial rates.
(c) The residential rate charged by the franchise holder shall
require that the designated container with the permissible amount of
rubbish or waster matter be placed behind the curb or on the edge of the
alley by 7:00 a.m., on the regular collection day. The franchise holder
shall be entitled to collect an additional charge for any additional
containers of garbage, rubbish or waster matter which would be in
addition to the regular residential service.
(d) All multiple dwelling buildings, including, but not limited
to, duplexes, apartments, condominiums, cooperatives, mobile homes
and trailer parks, and any other building or businesses containing
multiple dwelling unites which buildings are not a single-family dwelling
shall be charged the residential rate for each dwelling unit, and an
additional charge for each dwelling unit requesting additional containers
or services; provided, however, an owner of a multiple dweiling building
107
or business, by using dumpsters or equivalent containers may make
application to the franchise holder to be charged in accordance with the
rates for business establishments.
(e) There shall be a twenty (20) percent reduction in the
residential rate for those persons who have been found eligible for a
discount or refund by the Washoe County Assessor under the provisions
of NRS 361.800 to 361.877, inclusive, and commonly referred to as the
“Senior Citizens’ Property Tax Assistance Act.” Any such person shall
be entitled to the reduced rate by making written application to the
franchise holder and submitting written proof of the finding of eligibility
by the Washoe County Assessor.
Proposed on the 8" day of October, 1991.
Proposed by Commissioners Beck.
Passed on the 18" day of November, 1991.
Vote:
Ayes: Commissioners: Beck, Cornwall, Leighton, McDowell
& Reid.
Nays: Commissioners: None.
Absent: Commissioners: None.
Rene Reid
Chairman of the Board
ATTEST:
judi Bail
County Clerk
This ordinance shall be in force and effect from and after the 2™ day of
December, 1991.
108
SUMMARY: Establishes a reduced level of garbage service within
certain portions of the unincorporated area of county
and provides for certain exemptions to garbage service.
BILL NO. 1023
ORDINANCE NO. 848
AN ORDINANCE AMENDING THE WASHOE COUNTY CODE
PROVIDING FOR GARBAGE SERVICE WITHIN CERTAIN
PORTIONS OF THE UNINCORPORATED AREA; PROVIDING
FOR A REDUCED LEVEL OF GARBAGE SERVICE; PROVIDING
FOR CERTAIN EXEMPTIONS TO SERVICE; AND, PROVIDING
OTHER MATTERS PROPERLY RELATED THERETO.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY
OF WASHOE DO ORDAIN:
SECTION 1. Section 90.037 of the Washoe County Code is hereby
amended by to read as follows:
90.037 Subscription to use of garbage service.
l. Every owner of real property who accumulates or causes
the accumulation of garbage as defined in this chapter upon any
premises in the area described in section 90.035 must subscribe to the
collection, hauling and disposal of garbage pursuant to the provisions of
this chapter, unless such person qualifies for an exemption pursuant to
this section.
2. For purposes of determining whether garbage service
must be subscribed, it is presumed that every single-family dwelling, any
building containing rooms for sleeping and overnight accommodations,
every building or dwelling unit with a kitchen facility, and every business
which permits food and drink to be sold, served or consumed upon the
premises is accumulating or causing the accumulation of garbage upon
the premises. Any owner or occupant of dwelling units or business
establishments desiring to be exempt from garbage service because
garbage is not being accumulated upon t he premises must have the
109
written approval of the district health officer, which approval shall not
be granted except upon the showing that garbage, as defined by this
chapter, is not being accumulated upon the premises.
3. An owner or occupant of a residential dwelling unit may
also receive an exemption from garbage service if he desires to haul and
dispose of his own residential garbage or because an easily recognizable
condition exists on the property that presents a significant hardship to
the resident of the property or to the franchised collector in the normal
process of curbside collection of garbage. Any owner or occupant
wishing to be exempt from residential garbage service under these
circumstances must obtain an exemption permit issued by the district
health officer. Upon the issuance and acceptance of the exemption
permit, the owner or occupant agrees to comply with all conditions,
Statutes, laws, codes and regulations applicable to storage, recycling,
hauling and disposal of garbage, including the following:
(a) Garbage must be stored properly so as not to cause a
health hazard. attract or propagate vectors, vermin, or pests, create
unpleasant odors, or create nuisance.
(b) | Garbage must be hauled to an approved disposal site not
less than every 7 calendar days.
(c) Precautions are to be taken to prevent littering and
nuisances at the loading point during transport and at the disposal site.
This includes the requirement that the waste and the vehicle be tightly
covered during transport to the disposal site.
(d) Upon approval of the exemption application, the
individual may only haul his own residential waste matter and must not
provide garbage service to any other person.
SECTION 2. Section 90.060 of the Washoe County Code is hereby
amended by to read as follows:
90.060 ishi l
F. For residential services, the franchise holder shall be
entitled to collect a garbage collection fee based upon the following
criteria:
(a) The charge for collection of garbage for residential areas
shall be on a weekly basis and shall include one “designated container.”
110
A “designated container” shall be a container with a maximum capacity
of 32 gallons which does not exceed 75 pounds in weight, or be a
container approved by the franchise holder.
(b) When requested, the franchise holder shall provide more
frequent collections on a regular basis, and the rate for such additional
collections shall be agreed to in the same manner as commercial rates.
(c) The residential rates charged by the franchise holder shall
require that the designated container be placed behind the curb or on the
edge of the alley by 7:00 a.m., on the regular collection day. The
franchise holder shall be entitled to collect an additional charge for any
additional containers of garbage, rubbish or waster matter which would
be in addition to the regular residential service.
(d) All multiple dwelling buildings, including, but not limited
to, duplexes, apartments, condominiums, cooperatives, mobile homes
and trailer parks, and any other buildings or businesses containing
multiple dwelling units which buildings are not a single-family dwelling,
shall be charged the residential rate for each dwelling unit, and an
additional charge for each dwelling unit requesting additional containers
or services; provided, however, an owner of a multiple dwelling building
or business, by using dumpsters or equivalent containers, may make
application to the franchise holder to be charged in accordance with the
rates for business establishments.
(e) There shall be a 20 percent reduction in the residential
rate for those persons who have been found eligible for a discount or
refund by the Washoe County assessor under the provisions of NRS
361.800 to 361.877, inclusive, and commonly referred to as the “Senior
Citizens’ Property Tax Assistance Act.” Any such persons shall be
entitled to the reduced rate by making written application to the
franchise holder and submitting written proof of the finding of eligibility
by the Washoe County assessor.
SECTION 3. Section 90.090 of the Washoe County Code is hereby
amended to read as follows:
90.090 Collection procedures. The franchise holder shall
be entitled to adopt and enforce the following billing procedures:
‘. Billing for residential service shall be in advance for the
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charges allowed by this code on a quarterly basis, and such charges shall
be due and payable on the first day of each billing period. Franchisee is
authorized to establish procedures for collecting delinquent accounts,
including the right to collect security deposits.
2. Any owner or occupant of a residential dwelling unit
who has obtained an exemption permit from the district health officer
allowing that individual to haul and dispose of his own residential waste
matter shall still be billed on a quarterly basis. Such owner or occupant,
however, shall not be required to pay the amount billed if he submits to
the franchise holder receipts or other proof showing that he has
disposed of his garbage at an approved disposal site for each week
within the previous quarter. Failure to show such proof of compliance
Shall result in entire bill being due and payable and may result in
revocation of the exemption by the district health officer.
3. The franchise holder shall bill for commercial service in
advance on a monthly basis, and such charges shall be due and payable
on the first day of each billing period. The bill or charge for commercial
service shall be delinquent if not fully paid on the last day of each
monthly period.
Proposed on the 10" day of March, 1992.
Proposed by Commissioners Reid.
Passed on the 14" day of April, 1992.
Vote:
Ayes: Commissioners: Beck, Cornwall, McDowell & Reid.
Nays: Commissioners: None.
Absent: Commissioners: Leighton.
Gene McDowel]
Chairman of the Board
ATTEST:
Judi Bailey _
County Clerk
This ordinance shall be in force and effect from and after the 28" day of
Apnmil, 1992.
CERTIFICATE OF SERVICE
Pursuant to Rule 29.2. of the Rules of the Supreme Court in
compliance with 28 U.S.C. § 1746, I declare that | am the attorney of
record for the Petitioners herein and that on this date I did cause to be
deposited in the United States Mail, postage fully paid, a true and
correct copy of the foregoing addressed to:
Frank Cassas, Esq.
Marshall Hill Casas & deLipkau
333 Holcomb Avenue, Suite 300
P.O. Box 2790
Reno, Nevada 89505
Melanie Foster, Esq.
Deputy District Attorney
P.O. Box 11130
Reno, Nevada 89520
DATED this _32f ~ dayof July, 1997.
Fd = af
PMARC PICKER, ESQ. \
ZEH, POLAHA, SPOO, HEARNE & PICKER
575 Forest Street, Suite 200
P.O. Box 3344
Reno, Nevada 89504
(702) 324-4533
Pai
ae
Subscribed and‘Sworn to before me
this -/’”' day of Juty’ 1997.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.