CALHOUN COUNTY COM'N v. Hooks

Decision Date01 August 1997
Citation728 So.2d 625
PartiesCALHOUN COUNTY COMMISSION v. Christine HOOKS and Walter L. Young.
CourtAlabama Court of Civil Appeals

Thomas M. Sowa of Burnham & Klinefelter, P.C., Anniston, for appellant.

Clifford L. Callis, Jr., and Jay E. Stover of the law firm of Clifford L. Callis, Jr., Rainbow City, for appellees.

CRAWLEY, Judge.

In August 1995, Christine Hooks and Walter L. Young filed a complaint in the Montgomery Circuit Court for a temporary restraining order against the Alabama Department of Environmental Management (ADEM), seeking to prohibit ADEM from issuing a permit to Industrial Waste, Inc. (IWI), for the construction of a solid waste disposal facility in Calhoun County. On August 22, 1995, the circuit court issued the TRO because, it concluded, the Calhoun County Commission had not complied with statutory procedures requiring public notice and a hearing on the proposed issuance of a permit for the landfill. On September 1, 1995, when the TRO expired, the circuit court issued a preliminary injunction. The Calhoun County Commission was not originally named as a defendant in the lawsuit, but on October 26, 1995, the circuit court, sua sponte, added the Commission as an indispensable party defendant.

Section 22-27-48(a), Ala.Code 1975, provides that ADEM may not consider an application for a landfill permit "unless such application has received approval by the affected unit of local government." See TransAmerican Waste Industries, Inc. v. Benson, 690 So.2d 346 (Ala.1997). Section 22-27-48(a) outlines six factors a local governing body "shall consider" in deciding whether to recommend approval of a proposal for a solid waste disposal site. After setting out what the local governing body must consider in deciding whether to approve a solid waste disposal facility, the statute specifies what the local governing body must do to provide notice to, and an opportunity for comment by, the general public.

Section 22-27-48(a) requires that local government approval for a waste disposal site "shall be made in a public meeting only after public notice of such application or proposal and an opportunity for public comment is provided." See Fitzjarrald v. City of Huntsville, 597 So.2d 1378, 1379 (Ala.Civ. App.1992); Ex parte Lauderdale County, 565 So.2d 623, 625 (Ala.1990). The statute mandates that the local government must hold at least one public hearing on the proposed issuance of the permit and must give public notice of the hearing at least 30, but not more than 45, days before the hearing date. Section 22-27-48(a) further provides for the method of giving public notice and sets out the information the notice should contain. The last two sentences of § 22-27-48(a) then provide:

"Within 90 days of receiving an application or proposal, the local governing body shall either approve the application or deny the application setting forth the reasons therefor. The failure of the local governing body to act on the proposal within 90 days of receiving the application shall constitute approval by said local governing body."

(Emphasis added.) The emphasized portion of the statute is at issue in this case: specifically, whether "the 90-day rule" permitting local government approval by a "failure to act" (and thereby permitting approval without notice and a hearing) overrides the remaining portions of § 22-27-48(a), which appear to require that notice and a hearing precede local government approval.

In August 1993, IWI requested local approval of its application to construct a landfill. The minutes of the Calhoun County Commission meeting on August 9, 1993, reflect that

"following discussion, the Commission decided to hold this request in abeyance until such time as a study can be completed to determine the effects on future permits, as well as what would be best for Calhoun County."

The County Commission did not approve or deny IWI's request. It did not give public notice or hold a hearing on the proposal. Six months after IWI submitted its request for local approval to the County Commission, IWI wrote a letter to the East Alabama Regional Planning and Development Commission stating that it presumed the County Commission's failure to act constituted tacit approval pursuant to the last two sentences of § 22-27-48(a). Meanwhile, ADEM, relying on its long-standing construction of the last two sentences of § 22-27-48(a) (that it could infer local government approval from the failure of the local governing body to act on a request within 90 days), had begun to process IWI's permit application. When the plaintiffs, Hooks and Young, learned from reading a local news story that ADEM was planning to issue the permit, they filed their complaint for a TRO against ADEM.

The circuit court decided that the "90-day rule" allowing local government approval by a "failure to act" did not apply in this case because, the court found, the County Commission had not "failed to act." The court concluded that the County Commission had "acted" on the proposal by receiving comment on the proposal at the August 9, 1993, Commission meeting and by holding the proposal in abeyance. Therefore, the court determined, because the "90-day rule" did not apply, the Commission was required to provide public notice and to hold a hearing before it granted local approval. The circuit court decided that ADEM was prohibited from issuing IWI a permit for the landfill because the Commission had not followed the notice-and-hearing procedures of § 22-27-48(a) and, consequently, IWI had not received proper host government approval of its request.

After the circuit court issued the preliminary injunction and made the Calhoun County Commission a party, IWI submitted a second request for host government approval of its landfill permit application. This time, the County Commission gave the required notice and held a public hearing. The Commission granted host government approval on April 25, 1996. After that approval was granted, IWI, which had previously intervened in the circuit court proceeding, moved to set aside the injunction. On May 13, 1996, the circuit court granted that motion, and the plaintiffs, Hooks and Young, requested that the court award them an attorney fee and costs. They based their attorney fee request on the claim that they had performed a public service by ensuring that the citizens of Calhoun County received notice and had the opportunity to be heard on IWI's request for local approval of the landfill.

After a hearing, the circuit court entered an order awarding fees and costs in the amount of $21,055 against the Calhoun County Commission. The Commission appeals, arguing that there is no statutory, contractual, or equitable basis for awarding the fee.

In assessing attorney fees, Alabama courts follow the "American Rule," which allows fees to be awarded only when authorized by statute, by contract, or by special equity, such as when the efforts of an attorney create a fund from which the fee may be paid. Horn v. City of Birmingham, 648 So.2d 607 (Ala.Civ.App.1994) (Horn I). An award of attorney fees may also be warranted when the litigation results in a benefit to the general public or renders a public service, even when there is no fund from which the fees could be paid. Battle v. City of Birmingham, 656 So.2d 344 (Ala.1995); Horn v. City of Birmingham, 718 So.2d 691 (Ala.Civ.App.1997) (Horn II).

The parties agree that there is no statutory right to an attorney fee in this case. The injunction statute does not authorize an award of attorney fees. Romar Development Co. v. Gulf View Management Corp., 644 So.2d 462 (Ala.1994). There is also no contractual right to a fee here. If an attorney fee is justified, it must be awarded pursuant to the "special equity" exception, specifically the exception for cases involving a "public benefit."

In Brown v. State, 565 So.2d 585 (Ala. 1990), the Alabama Supreme Court held that litigants who had challenged the validity of trying citizens on unsworn and unverified traffic ticket complaints were entitled to an attorney fee because they had "made a significant contribution to the integrity of our system of jurisprudence," and had "rendered a public service by bringing an end to an improper practice." Brown, 565 So.2d at 591-92. In Bell v. Birmingham News Co., 576 So.2d 669 (Ala.Civ.App.1991), this court held that a litigant who had brought to an end the Birmingham City Council's improper practice of conducting closed sessions had rendered a public service and was entitled to an attorney fee. See also Slawson v. Alabama Forestry Comm'n, 631 So.2d 953 (Ala. 1994) (award of attorney fee may be appropriate in an action based on § 13A-14-2, the "Sunshine Act").

In contrast, this court upheld the trial court's determination in Horn II, supra, that litigants who had challenged the zoning of a waste transfer station had not performed a public service for the citizens of Birmingham, but had instead bestowed a benefit merely on their own neighborhood and, therefore, were not entitled to an attorney fee. In Advertiser Co. v. Auburn Univ., 579 So.2d 645 (Ala. Civ.App.1991), this court upheld the trial court's refusal to award an attorney fee in an action under § 36-12-40, Ala.Code 1975, the "Open Records Act." We stated:

"Despite the numerous decisions of this and other courts recognizing equitable exceptions to the American Rule regarding attorney's fees, we do not read Brown (or, more recently, Bell) to mean that in every instance where a `common benefit' arguably accrues to the general public because of actions of the plaintiff, attorney's fees must be taxed as costs."

579 So.2d at 647.

In Advertiser Co., this court distinguished Brown and Bell on the basis that the improper practices eradicated by the litigants in those cases were "longstanding or clear violations of state law" in "direct contravention of state statutes. 579 So.2d at 648. We also...

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4 cases
  • Alabama Dem v. Town of Lowndesboro
    • United States
    • Alabama Court of Civil Appeals
    • April 8, 2005
    ...no discussion of state immunity); Ex parte Hooks, 728 So.2d 631, 631 (Ala.1998) (reversing and remanding Calhoun County Commission v. Hooks, 728 So.2d 625 (Ala.Civ.App.1997), in which this court reversed the trial court's award of attorney fees against the Calhoun County Commission and whic......
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    ...contends, the failure to explain the denial. The Court of Civil Appeals has construed this phrase similarly. See Calhoun County Comm'n v. Hooks, 728 So.2d 625 (Ala.Civ.App.1997), rev'd on other grounds, 728 So.2d 631 (Ala.1998). The dispute in Hooks began when Industrial Waste, Inc. ("Indus......
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    • United States
    • Alabama Supreme Court
    • December 11, 1998
    ...Thomas N. Sowa, Anniston, for respondent. LYONS, Justice. The judgment of the Court of Civil Appeals, Calhoun County Comm'n v. Hooks, 728 So.2d 625 (Ala.Civ.App.1997), is reversed and the cause is remanded for reconsideration in light of Ex parte Horn, 718 So.2d 694 REVERSED AND REMANDED. H......
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    • United States
    • Alabama Court of Civil Appeals
    • January 29, 1999

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