Clarkco Landfill Co. v. Clark County Solid Waste, C-3-98-251.

• Decision Date: 10 March 1999
• Docket Number: No. C-3-98-251.,C-3-98-251.
• Citation: 110 F.Supp.2d 627
• Parties: CLARKCO LANDFILL COMPANY, Plaintiff, v. CLARK COUNTY SOLID WASTE MANAGEMENT DISTRICT, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 627

110 F.Supp.2d 627

CLARKCO LANDFILL COMPANY, Plaintiff, v. CLARK COUNTY SOLID WASTE MANAGEMENT DISTRICT, et al., Defendants.

No. C-3-98-251.

United States District Court, S.D. Ohio, Western Division.

March 10, 1999.

Charles Joseph Faruki, Jeffrey T. Cox, Faruki Gilliam & Ireland, Dayton, OH, for Clarkco Landfill Company, plaintiff.

Henry N. Heuerman, Joseph A. Gregg, Eastman & Smith, Toledo, OH, for Clark County Solid Waste Management District, defendant.

Thomas Edward Trempe, Clark County Prosecutor — 3, Springfield, OH, for German Township Trustees, defendant.

DECISION AND ENTRY OVERRULING, AS MOOT, CLARK COUNTY DEFENDANTS' MOTION TO ABSTAIN (DOC. # 8); DECISION AND ENTRY SUSTAINING CLARK COUNTY DEFENDANTS' MOTION TO DISMISS (DOC. # 14); FURTHER PROCEDURES ORDERED

RICE, Chief Judge.

This litigation arises out of the efforts of Plaintiff to construct a landfill on property located in Clark County, Ohio ("Clark County").¹ The Plaintiff brings this litigation against the Clark County Solid Waste Management District ("District"), the Board of Commissioners of Clark County ("Board"), Roger Tackett ("Tackett"), James Sheehan ("Sheehan"), John Detrick ("Detrick"), W. Darrell Howard ("Howard"), Jeffry Johnson ("Johnson") and the Trustees of German Township ("Trustees").² Tackett, Sheehan and Detrick are alleged to be the members of the Board and Directors of the District. Howard and Johnson are alleged to be, respectively, the Administrator and Assistant Administrator for Clark County. All individuals have been named as Defendants, solely in their official capacities.³

The District is a single county solid waste management district, organized by the Board in 1988, pursuant to §§ 343.01, et seq., and §§ 3734.52, et seq., of the Ohio Revised Code. The members of the Board serve as the Directors for the District. In accordance with the statutes, the District adopted an initial solid waste management plan ("Initial Plan"), which was approved by the Ohio Environmental Protection Agency ("Ohio EPA") in February, 1992. The District's amended solid waste management plan ("Amended Plan") was approved by the Ohio EPA in September, 1996, and remains in effect at present.

In its Complaint, Plaintiff alleges that, in 1969, one of its affiliates, Tremont Landfill Company (and its predecessor),⁴ began to operate the Tremont Landfill, which is located in German Township, Clark County. That landfill was closed in September, 1994, after its capacity had been reached. In 1986, affiliates of the Plaintiff began to acquire parcels of land adjacent to the Tremont Landfill, with the intention of developing a landfill on the acquired parcels ("the Property"). Throughout the late 1980's, Clark County and its officials led the Plaintiff and its affiliates to believe that it would be permitted to build a landfill on the Property. For instance, in both the Initial and Amended Plans, the proposed landfill was identified as a facility that would receive solid waste generated within Clark County. Moreover, in 1988, Howard encouraged Plaintiff's affiliates to develop the Property as a landfill.

To reach its goal of constructing and operating a landfill at that site, Plaintiff and its affiliates have invested in excess of $5 million, to purchase and to develop the Property. That sum has been expended to acquire property, for professional services and for costs to secure the necessary permits and licenses. On February 7, 1992, the Plaintiff applied to the Ohio EPA for a permit to install ("PTI") a sanitary landfill on the Property. After lengthy proceedings before that administrative agency, the Ohio EPA issued a PTI to Plaintiff on February 8, 1996.⁵ The Plaintiff has also obtained a permit from the Army Corps of Engineers, allowing it to move wetlands, and an additional permit from the Ohio EPA, concerning air quality standards.

The initial support given to the Plaintiff and its affiliates by Clark County and its officials changed to hostility at some point in the early 1990's. In 1992, Clark County refused to select Plaintiff's landfill during two requests for a proposal concerning the long-term waste disposal needs for Clark County, despite the fact that it was the low bidder on each occasion. Instead, Clark County selected a proposed mass-burn option.⁶ Ultimately, the vendor selected to construct the mass-burn facility backed out of its proposal, and that technology has been abandoned as an option. In addition, Plaintiff has faced opposition from a citizens group in Clark County, "Citizens for Wise Actions Towards Environmental Resources" ("CF/Water"). That group has been financially supported by the Trustees. Various officials of Clark County have been in communication with members of CW/Water, discussing, inter alia, the need for county officials to exercise caution in their comments about the Plaintiff's proposed landfill, so as to avoid the appearance of having prejudged the issue.

In 1993, the District adopted Rules 2-393 and 3-393, which regulated the siting process for landfills within Clark County. Among other provisions, those rules provided the District with the authority to consider design standards when deciding whether to permit the construction of a landfill within Clark County. Shortly thereafter, the District filed a declaratory judgment action against Plaintiff and the Director of the Ohio EPA. The Clark County Court of Appeals ultimately declared invalid that portion of the rules which permitted the District to consider design standards when making siting decisions, since such standards were within the exclusive province of the Ohio EPA. Clark County Solid Waste Mgt. District v. Danis Clarkco Landfill, 109 Ohio App.3d 19, 671 N.E.2d 1034 (1996).⁷ Rules 2-393 and 3-393 have since been rescinded and replaced with Rule 1-796, which now governs the siting of landfills within Clark County. Under Rule 1-796, the District will consider, when determining whether to permit a landfill to be located within that County, access to the site and traffic, isolation from adjacent properties, isolation from sensitive ecology, isolation from important historic and cultural features, compatibility with land use/comprehensive plan, nuisance abatement, cost, host community considerations and any other appropriate concern.

On the same day that it initiated this litigation, the Plaintiff submitted to the District its plans and specifications for siting approval.⁸ However, the Plaintiff alleged in its Complaint that said submission is futile, since any review by the District will be a sham, given the fact that its Directors have prejudged the issue and are prejudiced against the construction of a landfill. Thus, the Plaintiff alleges that it is entitled "to get on with its business of constructing a new sanitary landfill without further delay or interference." Doc. # 1 at ¶ # 48. The Plaintiff contends that any further delay or interference will deprive it of property without due process of law, in violation of the Due Process Clause contained in the Fourteenth Amendment. According to Plaintiff, that property interest is its:

reasonable investment-backed expectations of the use of the Property as a landfill as a result of (a) its ownership of the land[;] (b) its long-publicized and oft-litigated intention to use the property for construction, maintenance and operation of a sanitary landfill, and its reliance on the results of those litigations[;] (c) its substantial expenditures in furtherance of the project including site development and permitting initiatives, and the plans and specifications it has developed[;] (d) its publically-announced plans to use, and its right to use, the property for the intended purpose of a sanitary landfill, which vested before the promulgation of original (and now rescinded) County Rules Nos. 2-393 and 3-393[;] (e) its property interest in and reliance upon the approved environmental permits[;] and (f) the award of and Plaintiff's reliance upon the zoning certificate and permanent injunction granted by this Court in the zoning litigation with German Township.

Id. at ¶ 49.

In its Complaint, the Plaintiff sets forth ten claims for relief, three of which arise under federal law, with the other seven arising under the laws of Ohio. For present purposes, the Court will limit its description to the Plaintiff's three federal claims.⁹ Each of those three claims is predicated in part on the contention that the Clark County Defendants are biased and prejudiced against locating the landfill where proposed and that, therefore, it will be denied a fair and impartial review of its application.

In its First Claim for Relief (Doc. # 1 at ¶¶ 57-68), Plaintiff sets forth a substantive due process claim under 42 U.S.C. § 1983 ("§ 1983"), alleging that the Defendants, by arbitrarily and capriciously denying it the right to construct a landfill on the Property, will deprive it of the right to property without due process, in violation of the Due Process Clause contained in the Fourteenth Amendment. In particular, the Plaintiff asserts that it has "a legitimate claim of entitlement and justifiable expectation" to use the Property as a landfill. Doc. # 1 at ¶ 58. The Plaintiff also contends that the Defendants will fail to give fair and impartial consideration to its request for siting approval and that they will employ Rule 1-796 to achieve their long sought goal of defeating its plans to construct a landfill.

In its Second Claim for Relief (Doc. # 1 at ¶¶ 69-92), the Plaintiff sets forth a procedural due process claim under § 1983. This claim is premised upon the same property interest as its substantive due process claim. The Plaintiff contends that it is being deprived of property without due process of law, because the Clark County Defendants have prejudged the issue; therefore, it is being denied its right, under the Due Process Clause, to have the dispute decided by a fair and impartial body, free of...