Franks v. Ross

• Decision Date: 04 December 2002
• Docket Number: No. 01-2354.,01-2354.
• Citation: 313 F.3d 184
• Parties: Jerry FRANKS; Laverne Cofield; Easton Acres Residents Association, Plaintiffs-Appellants, v. William G. ROSS, Jr., Secretary for the North Carolina Department of Environment and Natural Resources, in his official capacity; Dexter Matthews, Director of Division of Solid Waste Management, in his official capacity; Wake County; Wake County Board of Commissioners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

313 F.3d 184

Jerry FRANKS; Laverne Cofield; Easton Acres Residents Association, Plaintiffs-Appellants, v. William G. ROSS, Jr., Secretary for the North Carolina Department of Environment and Natural Resources, in his official capacity; Dexter Matthews, Director of Division of Solid Waste Management, in his official capacity; Wake County; Wake County Board of Commissioners, Defendants-Appellees.

No. 01-2354.

United States Court of Appeals, Fourth Circuit.

Argued June 3, 2002.

Decided December 4, 2002.

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ARGUED:

Marcus B. Jimison, Katherine Leigh Carpenter, Land Loss Prevention Project, Durham, North Carolina, for Appellants. Michael R. Ferrell, Wake County Attorney, Wake County Attorney's Office, Raleigh, North Carolina; Lauren Murphy Clemmons, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.

ON BRIEF:

Shelley Tager Easton, Deputy County Attorney, Wake County Attorney's Office, Raleigh, North Carolina; Roy Cooper, Attorney General, Nancy E. Scott, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.

Before MOTZ and KING, Circuit Judges, and Robert R. BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Senior Judge BEEZER joined.

OPINION

KING, Circuit Judge.

Plaintiffs Franks, Cofield, and the Easton Acres Residents Association (the "Plaintiffs") appeal from the district court's October 2001 decision dismissing their complaint. The Plaintiffs sought injunctive relief against the Wake County Board of Commissioners and Wake County (collectively, "Wake County" or the "County"), as well as from officials of the North Carolina Department of Environment and Natural Resources (the "DENR Defendants") to halt the construction of a landfill in Holly Springs, North Carolina. The complaint alleged that the actions of Wake County and the DENR Defendants in connection with the landfill violated Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 1982, and the Equal Protection Clause of the Fourteenth Amendment. In addition, the Plaintiffs asserted a public policy challenge against the County, pursuant to N.C. Gen.Stat. § 14-234 (the "State Claim").

The district court dismissed as untimely the Plaintiffs' Title VI, § 1982, and Equal Protection claims against Wake County. The court also dismissed the State Claim and the Title VIII challenge for failure to state claims upon which relief could be granted. Finally, the court relied on Eleventh Amendment sovereign immunity to dismiss the Plaintiffs' claims against the DENR Defendants. In disposing of the case, the court also denied the Plaintiffs leave to amend their complaint for a second time. Franks v. Ross, No. 5:00-CV-936-BO(3), Order (E.D.N.C. Oct. 12, 2001) (the "Dismissal Order"). As explained below, we affirm the court's dismissal of the State Claim against Wake County. However, we reverse its dismissal of the Title VI, § 1982, and Equal Protection claims against the County.¹ Further, we conclude the court erred in refusing to authorize an amendment of the complaint and in determining that the DENR Defendants are entitled to immunity.

I.

A.

This proceeding arises from the efforts of Wake County to construct and operate a landfill in Holly Springs, North Carolina. These efforts have followed a tortured path, and they implicate issues of racial discrimination, conflicts of interest, administrative procedure, and the timeliness and ripeness of claims.

The small town of Holly Springs is home to the largest percentage of African-Americans of any municipality in Wake County.² Despite having less than two percent of the County's population, this African-American community has long borne a disproportionate share of Wake County's landfills. In 1975, Wake County sited a 300-acre solid waste landfill in Feltonsville, a neighborhood adjoining Holly Springs. This landfill (the "Feltonsville Landfill") operated for over twenty years. Holly Springs itself is presently home to three other landfills.

In the early 1990s, Wake County decided to pursue the creation of a new landfill in Holly Springs, designated as the "South Wake Landfill." In February 1999, the DENR issued the County a permit authorizing construction of the South Wake Landfill (the "South Wake Permit" or the "Permit"). The Plaintiffs promptly challenged the issuance of the Permit in state administrative proceedings. Thereafter, in December 2000, they instituted this proceeding in the Eastern District of North Carolina, seeking injunctive relief against the County and the DENR to halt construction of the South Wake Landfill. When their claims were dismissed, the Plaintiffs filed this appeal. In our review of the dismissal, we are obliged to accept as true the facts alleged in the complaint.³ Those facts are further reviewed in relevant part below.

B.

The Plaintiffs allege that Wake County has long engaged in a pattern of intentional discrimination in the siting of undesirable landfills near predominantly African-American communities. They also assert that the DENR, "by approving and permitting sites for landfills ... near Black neighborhoods and communities," has engaged in a similar pattern of discrimination. The DENR has permitted at least four other landfills in and around Holly Springs, "near areas primarily occupied by minorities," i.e., the Feltonsville Landfill, the Browning-Ferris Industries Landfill, the Cary Landfill, and the Holly Springs Landfill.

The siting and permitting of the landfill at issue here began in October 1990, when the Wake County Board of Commissioners decided to purchase additional property in order to expand the Feltonsville Landfill. One of the commissioners, a Mr. Adcock, voted in favor of the land purchase, despite the fact that he owned eighty-four acres of the land involved. On September 1, 1992, the Holly Springs Board of Commissioners adopted a resolution granting permission to the County to expand the Feltonsville Landfill. Once the County received that permission, it sought approval from the DENR. Prior to securing the DENR's approval, however, new state and federal environmental regulations came into effect. These regulations required all unlined landfills, such as the Feltonsville Landfill, to close by January 1, 1998. Upon learning that the Feltonsville Landfill would be forced to close, the County altered its proposed landfill project, abandoning the expansion plan for the Feltonsville Landfill in favor of the construction of an entirely new landfill. In December 1992, it submitted a site application plan to the DENR for the construction of the South Wake Landfill. If completed, the South Wake Landfill will spread across 471 acres, at a height of 280 feet.

On March 25, 1994, in the course of acquiring property on which to build the South Wake Landfill, the County condemned the eighty-four acre tract of land owned by Commissioner Adcock. On March 14, 1995, the DENR issued, pursuant to its regulations, a site suitability letter for the Landfill. This letter notified the County that the site was considered appropriate, and it authorized the County to apply to the DENR for a permit to construct the South Wake Landfill. On December 31, 1996, Wake County submitted to the DENR its application for a permit.

The Plaintiffs assert that "the defendants... pursued every route possible in order to prevent the plaintiffs from receiving adequate notice and participating in discussions regarding the landfill at a meaningful point in the process." Indeed, there was no public participation in the process until May 16, 1998, when the DENR, before ruling on the County's permit application, conducted a public hearing on the proposed South Wake Landfill. Three days after the hearing, the Holly Springs Board of Commissioners revoked its October 1992 resolution authorizing the County to expand the Feltonsville Landfill.⁴ Thereafter, in September 1998, the DENR inquired of the County whether its construction of the South Wake Landfill would disparately impact minority communities. The County responded that there would be no such disparate impact. On February 18, 1999, the DENR issued the South Wake Permit, authorizing the County to construct the South Wake Landfill.

C.

The Plaintiffs' challenges to the construction of the South Wake Landfill have travelled a complicated path; they are ongoing both in this Court and in the Court of Appeals of North Carolina. In March 1999, Plaintiff Franks filed a "contested case" petition with North Carolina's Office of Administrative Hearings, seeking both to set aside the DENR's issuance of the South Wake Permit and to enjoin Wake County from taking any action with regard to the South Wake Landfill.⁵ An Administrative Law Judge (the "ALJ"), ruling on a summary judgment motion, concluded that Wake County had violated North Carolina law in the permitting process by, inter alia, failing to procure Holly Springs's permission to construct the new landfill and failing to comply with the mandate of N.C. Gen.Stat. § 153A-136(c). This statutory provision requires that a county board of commissioners, prior to selecting a new landfill site, consider alternative sites as well as socioeconomic and demographic data, and conduct a public hearing.⁶ Franks v. N.C. Dep't of Env't & Natural Res., 99 EHR 0344, 380, Recommended Decision (Sept. 28, 1999) (the "Recommended Decision"). The Recommended Decision required the DENR to withdraw the South Wake Permit "until all procedural requirements are met." Id. at 22. In November 1999, the ALJ transferred the case to the DENR for a "final agency decision," pursuant to N.C. Gen.Stat. § 150B-34. After the DENR failed to render its decision...