County of Lancaster, S.C. v. Mecklenburg County, N.C.

• Decision Date: 10 September 1993
• Docket Number: No. 293PA92,293PA92
• Citation: County of Lancaster, S.C. v. Mecklenburg County, N.C., 434 S.E.2d 604, 334 N.C. 496 (N.C. 1993)
• Parties: The COUNTY OF LANCASTER, SOUTH CAROLINA; the County of Union, North Carolina; Rosa Potts Osborne; Robert Barr; Sam Ardrey and Wife, Janie M. Ardrey; Lavinia A. Kell; Margie K. Boylston; Tucker I. Johnson and Wife, Angelus R. Johnson v. MECKLENBURG COUNTY, NORTH CAROLINA; the Board of County Commissioners of Mecklenburg County, North Carolina, To Wit: Carla Depuy, Rod Autrey, Barbara Lockwood, Robert L. Walton, Peter Keber, John G. Blackmon, and Kenneth L. Andrews; and Robert L. Brandon, Zoning Administrator of Mecklenburg County, North Carolina.
• Court: North Carolina Supreme Court

Page 604

434 S.E.2d 604

334 N.C. 496

The COUNTY OF LANCASTER, SOUTH CAROLINA; the County of Union, North Carolina; Rosa Potts Osborne; Robert BarrSam Ardrey and Wife, Janie M. Ardrey; Lavinia A. KellMargie K. Boylston; Tucker I. Johnson and Wife, Angelus R. Johnson v.MECKLENBURG COUNTY, NORTH CAROLINA; the Board of County Commissioners of Mecklenburg County, North Carolina, To Wit Carla Depuy, Rod Autrey, Barbara Lockwood, Robert L Walton, Peter Keber, John G. Blackmon, and Kenneth L. Andrews; and Robert L. Brandon, Zoning Administrator of Mecklenburg County, North Carolina.

No. 293PA92.

Supreme Court of North Carolina.

Sept. 10, 1993.

Waggoner Hamrick Hasty Monteith Kratt & McDonnell by John H. Hasty and G. Bryan Adams, III, Charlotte, for all plaintiffs-appellants other than Union County; and Sanford L. Steelman, Jr., Monroe, for plaintiff-appellantUnion County.

Ruff, Bond, Cobb, Wade & McNair by James O. Cobb, Charlotte, for all defendants-appellees other than Robert Brandon; and Smith Helms Mulliss & Moore by H. Landis Wade, Jr., Charlotte, for defendant-appelleeRobert Brandon.

MEYER, Justice.

Following the entry on 3 August 1988 of a judgment by Snepp, J., in the Superior Court, Mecklenburg County, that declared Mecklenburg County's 1985 landfill zoning ordinance unconstitutional, Mecklenburg County, on 1 May 1989, amended its zoning ordinance, which in effect adopted a new, 1989 landfill zoning ordinance.Mecklenburg County subsequently petitioned defendantRobert L. Brandon for a sanitary landfill permit under the 1989 landfill ordinance.Defendant Brandon is, and was at the time the petition was filed, the Charlotte-Mecklenburg Zoning Administrator.

Plaintiffs brought this action for declaratory judgment pursuant to N.C.G.S. §§ 1-253 to -267 and Rule 57 of the North Carolina Rules of Civil Procedure to determine the validity and constitutionality of the 1989 ordinance.Answers were filed by the parties, and joint motions for summary judgment and judgment upon the pleadings were filed by all parties.These motions were heard before Fulton, J., Resident Superior Court Judge for Mecklenburg County, on 26 March 1990.Subsequently, on 20 December 1990, Judge Fulton issued a memorandum of judgment and thereafter, on 17 January 1991, entered judgment granting summary judgment in favor of plaintiffs and declaring the 1989Mecklenburg County zoning ordinance unconstitutional.Defendants appealed to the Court of Appeals, and that court, on 7 July 1992, rendered its decision reversing the superior court.

Plaintiffs filed notice of appeal and petition for discretionary review with this Court, and we granted discretionary review of the Court of Appeals' decision on 30 September 1992.

The primary issue before this Court is the facial constitutionality of section 3124, entitled "Sanitary Landfill," of the Mecklenburg County zoning regulations embodied in the County's zoning ordinance as it relates to a provision that allows the Charlotte-Mecklenburg Zoning Administrator to approve the County's zoning permit application for the siting of a landfill.There are two subsidiary issues: whether plaintiffs have standing to bring the declaratory judgment action and whether the 1988 decision of the superior court, which was not appealed, has any effect upon the present litigation.We find it unnecessary to address the issue of standing, conclude that the 1988 judgment has no effect on the present litigation, further conclude that the ordinance in question is not facially unconstitutional, and affirm the decision of the Court of Appeals.

Mecklenburg County is responsible for providing solid waste disposal facilities for the approximately 640,000 tons per year of solid waste that is generated in all areas of Mecklenburg County(both incorporated and unincorporated), except from within the Town of Matthews.

In April of 1985, the Mecklenburg County Board of Commissioners filed an application for a permit to site a sanitary landfill on county property adjoining Highway 521 in the southernmost tip of Mecklenburg County(the "Highway 521 site").A portion of the boundaries of the proposed landfill are adjacent to Lancaster County, South Carolina, and Union County, North Carolina.The 1985 county landfill ordinance generally provided that sanitary landfills could be located, only upon the issuance of a special use permit, and only in certain, specified zoning districts.The 1985 landfill ordinance also provided that the Mecklenburg County Board of Commissions would sit in judgment of its own application for a permit.

After a public hearing, the Mecklenburg County Board of Commissioners issued to Mecklenburg County a special use permit to construct a landfill on the Highway 521 site.This decision was subsequently appealed by all of the plaintiffs herein (with the exception of Union County, which was not a party to that action) to the Superior Court, Mecklenburg County.On 3 August 1988, Judge Frank W. Snepp declared the 1985 landfill ordinance unconstitutional as being in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution.Judge Snepp also declared that Mecklenburg County's actions in obtaining the landfill site, and its actions in attempting to issue a permit to itself for such site, had in fact rendered the County biased and incapable of sitting in judgment of its own application for the Highway 521 site.Mecklenburg County did not appeal this judgment.

Mecklenburg County amended its zoning ordinance with respect to sanitary landfills on 1 May 1989.The 1 May 1989 amendments to the zoning ordinance did not change the zoning classification of the Highway 521 landfill site or of the surrounding property owned by some of the defendants.Moreover, the application under the amended ordinance for a zoning permit was directed to defendant Brandon, whose title is Charlotte-Mecklenburg Zoning Administrator and who administers zoning ordinances promulgated by Mecklenburg County for the unincorporated areas of the county and those promulgated by the Towns of Matthews, Huntersville, Cornelius, Mint Hill, and Pineville within the areas of their zoning limits.Mr. Brandon's employment is not at the pleasure of the Mecklenburg County Commissioners.Rather, his employment is protected by certain personnel policies and regulations, which would prohibit the termination or demotion of Mr. Brandon by his supervisors except for cause.

In section 3301 of the ordinance, which was not changed by the 1 May 1989 amendments, the Mecklenburg County Commissioners, as legislators, have divided the zoning uses into three types as follows:

This ordinance provides for certain uses to be located by right in certain districts where the uses are compatible with the purpose of the district ¹ and with other uses to be located in certain districts only by complying with additional development standards to insure that same compatibility.²However, certain uses which are basically in keeping with the intent and purposes of the district may have substantial impacts on the surrounding area and should only be allowed after a review of the specific proposal.In order to insure that these uses would be compatible with surrounding development and be in keeping with the purposes of the district in which they are proposed to be placed, they are not allowed to be established as a matter of right.They may be established only after a review and approval of a special use permit as required by this chapter.³

(Emphasis added.)

Section 3124 of the ordinance as amended provides as follows:

Sanitary landfills are permitted in all districts in Mecklenburg County subject to the development standards listed below.The establishment and operation of any landfill must comply with Solid Waste Management Rules of the State of North Carolina and the "Regulations Governing the Storage, Collection, Transporting and Disposal of Garbage and Refuse in Mecklenburg County" as adopted by the Mecklenburg County Board of Commissioners under authority granted by the General Statutes of North Carolina.

Subsections 3124.1 through 3124.6 define "sanitary landfill," set out a procedure for reclamation of the proposed site, set forth yardage and screening requirements, specify permissible hours of operation, and regulate access.All documentation supporting the application must be submitted to the Zoning Administrator, who, with the assistance of the Mecklenburg County Director of Engineering, must assure that the application complies with the ordinance and regulations referred to in section 3124.

Subsection 3124.7 provides that the Mecklenburg County Building Standards Department must notify all affected property owners, advising them of the proposed development and when and where the plans may be inspected.The Zoning Administrator is also required to post a notice at the site, stating that rezoning for the proposed use has been requested and stating where additional information may be obtained.After notices are mailed, the Zoning Administrator must wait at least fifteen days and consider all comments on the application before deciding whether to issue a permit for the proposed use.Once the Zoning Administrator makes a decision, he has five days to notify affected property owners and anyone who commented on the proposed use.Any person aggrieved by the Zoning Administrator's decision is entitled to an appeal de novo to the Board of Adjustment pursuant to N.C.G.S. § 153A-345(b).

Under the 1989Mecklenburg County zoning ordinance, sanitary landfills are permitted in all zoning districts in Mecklenburg County so long as the establishment and operation of the landfill complies with the Solid Waste Management Rules of the State of North Carolina and the "Regulations Governing the Storage, Collection, Transporting and Disposal of Garbage and Refuse in Mecklenburg County" as adopted by the County's Board of Commissioners under...