Dirt, Inc. v. Mobile County Com'n

• Decision Date: 27 August 1984
• Docket Number: No. 83-7456,83-7456
• Citation: 739 F.2d 1562
• Parties: , 15 Envtl. L. Rep. 20,041 DIRT, INC., and Lamar Allen Harrison, Plaintiffs-Appellants, v. MOBILE COUNTY COMMISSION, William E. Hays, Douglas Wicks and Dan Wiley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1562

739 F.2d 1562

21 ERC 1958, 15 Envtl. L. Rep. 20,041

DIRT, INC., and Lamar Allen Harrison, Plaintiffs-Appellants, v. MOBILE COUNTY COMMISSION, William E. Hays, Douglas Wicks and Dan Wiley, Defendants-Appellees.

No. 83-7456.

United States Court of Appeals Eleventh Circuit.

Aug. 27, 1984.

Vincent F. Kilborn, III, Mobile, Ala., for plaintiffs-appellants.

Richard D. Horne, Hess, Atchison & Horne, Mobile, Ala., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before KRAVITCH and HENDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

ALBERT J. HENDERSON, Circuit Judge:

Dirt, Inc., a landfill operator, and Lamar Allen Harrison, its president, appeal from an adverse judgment in the United States District Court for the Southern District of Alabama, in their action for declaratory and injunctive relief challenging an act of the Alabama legislature (Act) regulating Mobile County's waste management system as being unconstitutional on its face and as applied to them. By mutual consent of the parties, the case was tried before a magistrate who held that both the Act and its application were constitutional. Although we agree that the Act is facially valid, after a review of the proceedings we conclude that the county, in its administration of the Act, deprived the appellants of their procedural due process rights.

Dirt, Inc. has operated two landfills in Mobile County for the past fourteen years. In May of 1981, the Alabama legislature passed Act 81-450 authorizing Mobile County to establish a solid waste management program. The Act provides that waste be managed only by those individuals or companies holding valid permits, the receipt of which is conditioned upon successful application for a certificate of need. Pursuant to the language of the Act, such a certificate "shall not issue ... to any person whose activity will result in a materially adverse effect on the net revenues of County's Solid Waste Disposal System, as determined by the Commission." Id. at Sec. V(2).

To conform with the Act, Harrison, acting on the behalf of Dirt, Inc., sought a certificate of need and a permit from the County Commission (Commission). The application was referred to the Solid Waste Advisory Board (Board) which considered it at its weekly meeting on October 7, 1982. The Board originally planned to deny the permit request at that meeting but then tabled action until a later, indeterminate date. Although Harrison attended the October 7, 1982 meeting, he did not attend the subsequent meeting on October 21, 1982 at which time the Board actually voted to deny the permit and certificate of need.

It is undisputed that Harrison was never notified that his application would be considered at the October 21, 1982 meeting. The appellants characterize this failure to give notice as a violation of procedural due process. Additionally, they contend that because the denial of a permit will require them to shut down the landfills, thereby drastically reducing their worth for any alternative purpose, the unconstitutional acts of the Board and Commission amounted to a taking without just compensation in violation of the fifth and fourteenth amendments. Finally, the appellants assert that the statute itself is unconstitutional both because it exceeds the permissible scope of the state's police power and is unduly vague. Taking the last contention first, we address each argument in turn.

The appellants first claim that the guideline set forth in Sec. V(2) of the Act which provides for denial of applications that "will result in a materially adverse effect on net revenues of the County's Solid Waste Disposal System, as determined by the Commission" is incapable of definitive construction. They point to the testimony of the County Solid Waste Coordinator who stated that he did not know the difference between "revenues" and "net revenues." See transcript at 49. "A law is void for vagueness if persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.' " Alladin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029 (5th Cir.1980) ¹ (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1920)). In spite of the Waste Coordinator's inability to articulate a distinction between these two terms, this statutory language cannot be said to be so vague or illusive that it is not amenable to reasonably concrete construction and sufficiently precise comprehension by ordinary individuals.

Next the appellants urge that the Act itself violates substantive due process because its intent and prohibitions fall without the permissible scope of the state police power. To satisfy due process, "the challenged legislation must have a legitimate public purpose based on promotion of the public welfare, health or safety," Alladin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029, 1039 (5th Cir.1980), and "be rationally related to the accomplishment of [that] legitimate state purpose." Id.

The appellants do not contend that in all circumstances, the regulation of landfills exceeds the permissible scope of the police power since the county clearly has an interest in insuring reliable, sanitary and cost-efficient waste management. Instead, they deny that the "impairment of net revenues" test is a rational means through which to effect this legitimate end. We disagree. By limiting entry into its waste disposal market on a "net revenues effect" basis, the county achieves two valid ends. First, before the county began contracting out its waste management, it operated its own landfills at a deficit of up to $100,000.00 per year. After contracting out the work to a garbage hauler, the county relieved itself of this economic burden. Second, the terms of the county's current waste disposal contract are such that it conceivably could earn revenue from the operation of the system. The contract provides that the county is entitled to a percentage payment based on the tonnage hauled by the current contractor, BFI. However, the county must guarantee BFI a certain volume of business. Otherwise, it would not be economically feasible for BFI to continue with the contract. This would leave the county in the undesirable position of losing all potential future revenues, thereby forcing it to resume the operation of its landfills, likely at another deficit. Therefore, the challenged legislation achieves the valid state purpose of continued, cost-free operation of the county waste management...