Alabama Dem v. Town of Lowndesboro

• Decision Date: 08 April 2005
• Docket Number: 2020385.
• Citation: 950 So.2d 1180
• Parties: ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT v. TOWN OF LOWNDESBORO and Lee Frazer.
• Court: Alabama Court of Civil Appeals

950 So.2d 1180

ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT v. TOWN OF LOWNDESBORO and Lee Frazer.

2020385.

Court of Civil Appeals of Alabama.

April 8, 2005.

William H. Pryor, Jr., atty. gen.; Olivia H. Jenkins, Tommy E. Bryan, and Paul Christian Sasser, Jr., asst. attys. gen., Department of Environmental Management.

J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, LLC, Montgomery, for appellees.

MURDOCK, Judge.

The Alabama Department of Environmental Management ("ADEM") appeals from a judgment entered by the Montgomery Circuit Court awarding the Town of Lowndesboro and Lee Frazer approximately $338,618 as interim attorney fees.

In August 1998, Alabama Disposal Solutions-Landfill, L.L.C. ("ADSL"), and the Lowndes County Commission entered into an agreement for ADSL to operate a solid-waste landfill in Lowndes County. The proposed location of the landfill was within the police jurisdiction, but not the corporate city limits, of Lowndesboro. In January 1999, ADSL filed an application with ADEM for a solid-waste-landfill permit. The application requested that ADEM issue a permit allowing ADSL to operate a solid-waste landfill to be located on a proposed site consisting of approximately 647.15 acres.

Pursuant to Ala. Admin. Code (ADEM), Rule 335-13-5-.02(1)(f), an applicant for a solid-waste-landfill permit is required to provide ADEM with the name and mailing address of "all property owners whose property is adjacent to the proposed site." Frazer owns property that is physically adjacent to the proposed site but that is not physically adjacent to the disposal area contained within the proposed site. Although ADSL provided ADEM with a list of the names and addresses of several other property owners who owned property adjacent to the proposed site, it did not provide ADEM with Frazer's name or address. Because ADSL did not inform ADEM about Frazer, ADEM failed to mail Frazer a copy of the public notice of ADSL's landfill-permit application as required by ADEM's regulations.

After receiving comments on ADSL's application, ADEM concluded that no public hearing was necessary as to ADSL's permit application and that the permit application was due to be approved. On July 19, 2000, ADEM issued a solid-waste-land-fill permit to ADSL. After ADEM issued ADSL's permit, Lowndesboro and Frazer appealed the issuance of the permit to the Environmental Management Commission ("EMC"). See Ala. Admin. Code (ADEM), Rule 335-13-1-.07 and r. 335-2-1-.03. Among the issues Lowndesboro and Frazer raised in the administrative appeal were the lack of notice to Frazer and an allegation that ADEM's approval of the landfill permit violated a Lowndesboro city ordinance.¹

In August 2000, while the administrative appeal was pending, Lowndesboro and Frazer filed a complaint, pursuant to Ala. Code 1975, § 6-6-220 et seq., in the Montgomery Circuit Court against ADEM, alleging that ADSL had not obtained "host government" approval from Lowndesboro before filing its permit application with ADEM and that Frazer had "never received any type of notice regarding the Landfill ... and her name was not submitted to ADEM by [ADSL]." Lowndesboro and Frazer alleged that ADEM's consideration and issuance of ADSL's permit was in violation of state law, and they requested that the trial court enter a declaratory judgment establishing the "rights, duties, and liabilities of the parties" and that it "[e]nter such orders ... as may be necessary and proper to give effect to the rights, duties, and liabilities of the parties as ... declared by the Court." Lowndesboro and Frazer subsequently amended their complaint four times. Frazer and Lowndesboro's complaint, as amended, asserted 20 claims for declaratory relief, including a claim requesting that the trial court stay any further action on ADSL's permit or any other landfill permit until ADEM adopted a State Solid Waste Management Plan ("State Plan") as a final regulation pursuant to state law. See Ala. Code 1975, § 22-27-45.

In October 2000, Lowndesboro and Frazer filed a motion with the trial court requesting that it stay the EMC from conducting any further proceedings in the administrative appeal regarding ADSL's permit based on ADEM's lack of notice to Frazer and based on ADEM's failure to adopt a State Plan as a final regulation pursuant to Ala.Code 1975, § 22-27-45(4)(d).² In November 2000, at the hearing on the motion for a stay, ADSL filed a motion to intervene in the case for the purpose of joining ADEM in its defense against Lowndesboro and Frazer's claims. ADSL also filed an answer denying that Lowndesboro and Frazer were entitled to the relief requested in their complaint and a response to Frazer and Lowndesboro's motion for a stay.

In November 2000, the trial court entered an order staying further proceedings by the EMC in the administrative appeal regarding ADSL's permit pending ADEM's adoption of a State Plan. ADEM and ADSL filed an interlocutory appeal from the order issuing the stay. See Alabama Disposal Solutions-Landfill, L.L.C. v. Town of Lowndesboro, 837 So.2d 292, 296 (Ala.Civ.App.2002). However, thereafter, ADEM adopted a State Plan as a final regulation and the trial court, upon a "Motion to Lift Stay" filed by Lowndesboro and Frazer, lifted the stay of EMC's administrative proceedings. The trial court's lifting of the stay eliminated the sole basis for this court's jurisdiction over ADEM's and ADSL's appeals from the order of the Montgomery Circuit Court granting the stay.³ We dismissed the appeal from the Montgomery Circuit Court for lack of jurisdiction. Alabama Disposal Solutions, 837 So.2d at 296.

In August 2001, while ADEM's and ADSL's appeals in Alabama Disposal Solutions were pending, Lowndesboro and Frazer filed a motion for a summary judgment in the Montgomery Circuit Court action based on (1) the alleged "failure of [ADEM] to provide notice to `adjacent landowners' to a proposed landfill unit as required by ADEM Admin Reg. § 335-13-5-.03" and (2) an alleged error in the public notice. Lowndesboro and Frazer requested that the trial court declare that ADEM's failure to provide Frazer with notice violated Ala. Admin. Code (ADEM), Rule 335-13-5-.03; that the failure to provide Frazer with notice "precluded the authority of ADEM to issue a permit to ADSL" for the landfill at issue; that ADEM's public notice was defective and that the defective notice "precluded the authority of ADEM to issue a permit to ADSL" for that landfill; and that ADSL's permit for that landfill was "void ab initio."

In March 2002, the trial court entered an order that granted Lowndesboro and Frazer's motion for a summary judgment and that declared ADSL's permit to be "null and void." ADEM and ADSL appealed from the judgment. We affirmed the trial court's judgment without issuing an opinion. See Alabama Dep't of Envtl. Mgmt. v. Town of Lowndesboro, (No. 2010824, June 30, 2004) 915 So.2d 1182 (Ala.Civ.App.2004) (table).

In February 2002, before the Montgomery Circuit Court entered the summary judgment for Lowndesboro and Frazer, Lowndesboro and Frazer filed a motion for attorney fees against ADEM, alleging that as a result of their efforts, ADEM had adopted a State Plan as a final regulation and that Frazer and Lowndesboro "ha[d] performed a public service which has benefitted the citizens of Lowndes County as well as the State of Alabama." The motion requested that the trial court apply a lodestar and multiplier to the attorney-fee award that would result in an attorney-fee award of approximately $1.6 million. Lowndesboro and Frazer also filed a motion requesting that the trial court reserve jurisdiction over their motion for attorney fees in the event the trial court entered a summary judgment in their favor.

In its March 2002 summary-judgment order, the trial court "reserve[d] jurisdiction over other pending motions" and set the pending motions for a hearing to be held on April 3, 2002. Subsequently, the trial court held a hearing on Lowndesboro and Frazer's motion for attorney fees, at which it received ore tenus evidence. No transcript was made of the hearing. Subsequently, Lowndesboro and Frazer, on the one hand, and ADEM, on the other, filed briefs in support of their respective positions for and against an award of attorney fees to Lowndesboro and Frazer.

The trial court scheduled a status conference in August 2002. At the status conference, the trial court indicated that it would not rule on Lowndesboro and Frazer's motion for attorney fees until this court rendered a decision as to ADEM and ADSL's appeal of the summary judgment because "one of the matters to be considered in awarding attorney fees is the measure of success which could not be determined until there is a final ruling."

Approximately one week later, Lowndesboro and Frazer filed a motion requesting that the trial court award them interim attorney fees based on essentially the same grounds that they had asserted in their February 2002 motion for attorney fees, except that they did not request the application of a lodestar or multiplier to the requested fee award. ADEM filed a response opposing the motion for interim attorney fees.

On December 4, 2002, the trial court entered an order awarding Lowndesboro and Frazer approximately $338,618 as interim attorney fees. The order stated, in part:

"BACKGROUND

"On November 29, 2000, this Court ordered `That all proceedings concerning the issuance of a Solid Waste Permit to [ADSL] for the operation of the Tallawassee Ridge Solid Waste Facility, shall be stayed pending the adoption of a State Solid Waste Management Plan by [ADEM].' The basis of the ruling was that § 22-27-45(4)(d), Code of Alabama 1975, required ADEM to adopt a State Solid Waste Management Plan (`State Plan') as a final regulation and that § 22-27-40, et seq. required that permits for solid waste facilities had to comply with the State Plan. Since it was undisputed that ADEM had not...