DISPOS. SOLUTIONS-LANDFILL v. Town of Lowndesboro

Decision Date31 May 2002
Citation837 So.2d 292
PartiesALABAMA DISPOSAL SOLUTIONS-LANDFILL, L.L.C. v. TOWN OF LOWNDESBORO and Lee Frazer. Alabama Department of Environmental Management v. Town of Lowndesboro and Lee Frazer. Town of Lowndesboro v. Alabama Disposal Solutions-Landfill, L.L.C. and Lowndes County Commission.
CourtAlabama Court of Civil Appeals

C. Ellis Brazeal III and Tracy H. Beauchamp of Walston, Wells, Anderson & Bains, L.L.P., Birmingham, for Alabama Disposal Solutions-Landfill, L.L.C.; and Harry A. Lyles, Office of gen. counsel, Alabama Department of Environmental Management.

J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, Montgomery, for Town of Lowndesboro and Lee Frazer.

Katy Smith Campbell of Chestnut, Sanders, Sanders, Pettaway & Campbell, P.C., Selma, for Lowndes County Commission.

Charles B. Paterson and James L. Noles, Jr., of Balch & Bingham, L.L.P., Montgomery, for amici curiae Business Council of Alabama, Association of County Commissions of Alabama, Alabama Chemical Association, Alabama Forestry Association, and Alabama Pulp and Paper Council.

MURDOCK, Judge.

These cases arise out of a proposal by Alabama Disposal Solutions-Landfill, L.L.C. ("ADS"), to operate a landfill in Lowndes County to be known as the Tallawassee Ridge Solid Waste Facility.

On August 10, 1998, the Lowndes County Commission ("the County") adopted a resolution granting "host-government" approval for the landfill. On that same day, the County and ADS entered into a contract. On August 24, 1998, the parties executed an addendum to the contract. The contract and the addendum provided that the County would receive "tipping" fees from ADS; those fees were to be calculated based on the number of tons of waste disposed of at the landfill.

On December 8, 1998, the Town of Lowndesboro ("Lowndesboro") enacted Ordinance 98-1, prohibiting landfills within its corporate city limits and within its police jurisdiction. Approximately 20 acres of the proposed landfill lie within Lowndesboro's police jurisdiction, but outside its city limits.1 At the time the Ordinance was enacted, the County had a solid-waste-management plan in place pursuant to the requirements of § 22-27-47, Ala. Code 1975. Lowndesboro did not have its own solid-waste-management plan; therefore, Lowndesboro fell under the County plan. See § 22-27-47(a).

On January 19, 1999, ADS filed an application with the Alabama Department of Environmental Management ("ADEM") for a solid-waste permit.2 Under Ala. Admin. Code, r. 335-13-5-.02(1)(f), an applicant for a solid-waste permit is required to provide ADEM with a list of adjacent property owners. Although Lee Frazer owns land adjacent to the proposed landfill, ADS did not list Frazer as an adjacent property owner; therefore, ADEM did not send her notice, pursuant to Ala. Admin. Code, r. 335-13-5-.03(1)(b)2., of ADEM's intent to consider ADS's solid-waste-permit application.

On June 8, 2000, ADEM published notice of its intent to consider ADS's solid-waste-permit application. ADEM received comments on the proposed landfill and decided that under its regulations, no additional public hearing was necessary. ADEM determined that the permit application met all technical requirements under Division 13 of ADEM's regulations (Ala. Admin. Code, r. 335-13-1 et seq.), which pertains to solid waste, and on July 19, 2000, ADEM issued a solid-waste permit to ADS ("the ADS Permit").

At the time ADEM issued the ADS permit, ADEM had developed both phases of a two-phase, solid-waste-management plan for the State pursuant to Article 3 of the Solid Waste Act, § 22-27-40 et seq., Ala. Code 1975. However, ADEM had not formally adopted either phase of the plan as a "final regulation" as contemplated by § 22-27-45(4)d., Ala.Code 1975.3

The Administrative Appeal

After ADEM issued the ADS Permit, Lowndesboro and Frazer filed an administrative appeal with the Environmental Management Commission ("EMC"), seeking revocation of the ADS Permit. ADS, as owner of the ADS Permit, intervened as a matter of right in the appeal before the EMC. Lowndesboro and Frazer state that among the issues raised before the EMC were the lack of notice to Frazer and the allegation that the landfill would be in violation of Ordinance 98-1. Extensive discovery was conducted in preparation for a hearing before the EMC, which was set for December 19, 2000. However, the administrative appeal was stayed by an injunction granted by the Montgomery Circuit Court, as outlined below.

The Montgomery County Declaratory-Judgment Action

While the administrative appeal was pending, Lowndesboro and Frazer filed a complaint for a declaratory judgment against ADEM in the Montgomery Circuit Court, seeking to have the ADS Permit declared invalid. Thereafter, Lowndesboro and Frazer amended their complaint four times and added numerous additional grounds upon which they claimed the ADS Permit should be declared invalid. Among other things, Lowndesboro and Frazer alleged that ADEM's failure to adopt a state solid-waste-management plan as a regulation, pursuant to § 22-27-45(4)d., violated Article 3 of the Solid Waste Act, and that ADEM failed to notify Frazer, as required by Ala. Admin. Code, r. 335-13-5.03(1)(b)2, of ADEM's intent to consider ADS's solid-waste-permit application.

On October 24, 2000, Lowndesboro and Frazer filed a request for a stay, seeking to stay all proceedings before the EMC concerning the issuance of the ADS Permit because, they said, (1) ADEM's failure to adopt a solid-waste-management plan as a final regulation under § 22-27-45(4)d. voided its permitting authority, and (2) the lack of notice to Frazer invalidated the ADS Permit. ADEM filed a response to Lowndesboro's and Frazer's stay request, alleging that there was no legal basis for staying the administrative proceedings before the EMC.

On November 3, 2000, a hearing was held on Lowndesboro and Frazer's request for a stay. At the hearing, ADS appeared and filed a proposed answer and a motion to intervene as a matter of right. The Montgomery Circuit Court accepted ADS's motion to intervene and conditionally granted intervention for the limited purpose of appearing at the motion hearing.

On November 29, 2000, the Montgomery Circuit Court entered an order, among other things, staying all proceedings pertaining to the issuance of the ADS Permit. That order enjoined "all proceedings concerning the issuance of a Solid Waste Permit to Alabama Disposal Solutions Landfill for the operation of the Tallawassee Ridge Solid Waste Facility ... pending adoption of a State Solid Waste Plan by the Alabama Department of Environmental Management." ADEM and ADS have appealed to this court from that order, and those appeals (2000294 and 2000324) have been consolidated by this court by agreement of the parties.

On October 9, 2001, the EMC, at the request of ADEM, adopted a state solid-waste-management plan as an "emergency rule" pursuant to Ala.Code 1975, § 41-22-5. See Ala. Admin. Code, r. 335-13-9. Under § 41-22-5, this plan was effective only for 120 days. On February 5, 2002, however, ADEM adopted a state solid-waste-management plan as a final regulation.

As a result of the adoption by ADEM of the emergency rule, the trial court lifted its stay of the administrative proceedings relating to the issuance of the permit.4 Consequently, Lowndesboro and Frazer move this court to dismiss these appeals as moot.

The relief sought in these appeals by ADEM and ADS was relief from the trial court's order staying all ADEM proceedings relating to the issuance of the permit. Indeed, the sole basis for the jurisdiction of this court in these appeals was that interlocutory injunctive order. See Rule 4(a)(1)(A), Ala. R.App. P. With the lifting of the stay, there is no longer any need for the relief sought in these appeals. See Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981)

; Byrd v. Sorrells, 265 Ala. 589, 93 So.2d 146 (1957); Ex parte McFry, 219 Ala. 492, 122 So. 641 (1929). The issues raised in these appeals are thus moot, and this court is without jurisdiction to act. See Siegelman v. Alabama Ass'n of School Bds., 819 So.2d 568 (Ala.2001). We therefore conclude that these appeals are due to be dismissed.

The Lowndes County Declaratory-Judgment Action

On August 4, 2000, ADS and the County filed in the Lowndes Circuit Court a complaint for a declaratory judgment, pursuant to § 6-6-220 et seq., Ala.Code 1975, against Lowndesboro, the mayor of Lowndesboro, and the members of the Lowndesboro town council in their individual and official capacities, seeking to have Ordinance 98-1 declared void and unconstitutional.

On October 3, 2000, Lowndesboro filed an answer to the complaint, a motion to dismiss, and a counterclaim against the County, alleging that the County's "resolution [granting host-government approval] purportedly enacted in August 1998 is invalid and due to be set aside." Lowndesboro offered numerous reasons supporting its position that the County's resolution granting host-government approval was invalid and that the County's resulting contract with ADS was, therefore, also invalid.5

On October 10, 2000, ADS and the County filed summary-judgment motions on their declaratory-judgment claims and on Lowndesboro's counterclaim against the County. Thereafter, in November 2000, Lowndesboro filed three amended answers. After granting one continuance, the Lowndes Circuit Court held a hearing on December 4, 2000, on the summary-judgment motions filed by ADS and the County, despite Lowndesboro's (unsuccessful) attempt to be allowed further discovery on its counterclaim. On January 26, 2001, the Lowndes Circuit Court entered a judgment declaring Ordinance 98-1 invalid and unconstitutional and enjoining Lowndesboro from enforcing the ordinance. The judgment also held that Lowndesboro's counterclaim against the County was barred by § 11-12-8, Ala. Code 1975, the statute of nonclaims, because it...

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    ...a mere defense to the action filed by the municipality, but as a separate claim altogether. In Alabama Disposal Solutions–Landfill, L.L.C. v. Town of Lowndesboro, 837 So.2d 292 (Ala.Civ.App.2002), a landfill operator and a county filed a declaratory-judgment action against a town seeking to......
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