A & H Services, Inc. v. City of Wahpeton

• Decision Date: 20 April 1994
• Docket Number: No. 930197,930197
• Citation: 514 N.W.2d 855
• Court: North Dakota Supreme Court
• Parties: A & H SERVICES, INC., f/k/a A & H Waste Services, Inc., Plaintiff and Appellant, v. CITY OF WAHPETON, North Dakota, a Municipal Corporation, Defendant and Appellee. Civ.

Page 855

514 N.W.2d 855

A & H SERVICES, INC., f/k/a A & H Waste Services, Inc. Plaintiff and Appellant, v. CITY OF WAHPETON, North Dakota, a Municipal Corporation Defendant and Appellee.

Civ. No. 930197.

Supreme Court of North Dakota.

April 20, 1994.

Mark A. Meyer (argued), of Meyer Law Firm, Wahpeton, for plaintiff and appellant.

Bruce D. Quick (argued), of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant and appellee.

LEVINE, Justice.

A & H Services, Inc. [A & H] appeals from a district court summary judgment dismissing its claims against the City of Wahpeton. We affirm.

Since 1975, the City has contracted with Waste Management Partners of Southeast North Dakota [WMP] ¹ for residential, commercial and industrial waste removal. WMP hauls Wahpeton's waste to a landfill in Gwinner. In 1988, the owners of A & H contacted the city attorney about providing garbage removal for commercial businesses in Wahpeton. They were advised that the existing ordinances did not prohibit A & H from providing that service. A & H began providing service to numerous commercial businesses, hauling the waste to the Casselton landfill.

On December 19, 1988, the City Council adopted an ordinance regulating waste hauling. The ordinance required that waste haulers be licensed by the City, and set out qualifications. The ordinance further said:

"The City Council has the discretion to limit the number of such licenses issued as it determines necessary for the promotion and health and welfare of the City and its residents."

A & H, in partnership with Murphy Services, Inc., submitted a license application. The application proposed to haul waste to Casselton, Rolla, or Fergus Falls, Minnesota. On March 6, 1989, the City Council denied the application. The Council listed five reasons, related to the qualifications specified in the ordinance, for denying the license: (1) unsatisfactory arrangements for a disposal site; (2) unsatisfactory financial information; (3) unsatisfactory provisions for insurance coverage; (4) failure to provide for a waste transfer station; and (5) failure to provide a performance bond and a pollution liability bond. WMP, which had also applied, was issued a temporary 90-day license, to be extended upon WMP's filing the proper bonds.

A & H submitted a new application, without Murphy Services, on December 13, 1991. ² The City Council denied this application on January 6, 1992, expressing concern about the City's potential expanded liability under federal law if waste from Wahpeton were hauled to additional disposal sites.

A & H sued the City, seeking issuance of a license, monetary damages, and an injunction preventing the City from enforcing the ordinance. Following discovery, the district court granted summary judgment dismissing all claims. A & H appealed.

Summary judgment under Rule 56, N.D.R.Civ.P., is a procedural device for promptly and expeditiously disposing of a controversy without a trial if there is no genuine issue of material fact, or if the law is such that resolution of the factual disputes will not alter the result. Littlefield v. Union State Bank, 500 N.W.2d 881, 883 (N.D.1993). We view the evidence in the light most favorable to the party opposing the motion, and give to that party the benefit of all favorable inferences that we can reasonably draw from the evidence. Ellingson v. Knudson, 498 N.W.2d 814, 817 (N.D.1993). Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the opposing party may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991). The resisting party must present competent admissible evidence which raises an issue of material fact and must, if appropriate specifically draw the court's attention to relevant evidence in the record. Peterson v. Zerr, supra, 477 N.W.2d at 234. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and may not leave to the court the chore of divining what facts are relevant, or why facts are relevant, to the claim for relief. Peterson v. Zerr, supra, 477 N.W.2d at 234.

Even if a factual dispute exists, summary judgment is appropriate if the law is such that resolution of the factual disputes will not change the result. First State Bank of Goodrich v. Oster, 500 N.W.2d 593, 598 (N.D.1993). In determining whether summary judgment is warranted, the court must consider the substantive standard of proof at trial. Ellingson v. Knudson, supra, 498 N.W.2d at 817.

A & H asserts that the City Council's enactment of the waste-hauling ordinance was arbitrary, capricious and unreasonable, and seeks to enjoin enforcement of the ordinance. A & H concedes that ordinances regulating the collection and disposal of waste fall within the City's police power. See Tayloe v. City of Wahpeton, 62 N.W.2d 31, 35 (N.D.1953). Once it is determined that a city has the general authority to regulate a certain subject matter, the burden is upon the party challenging an ordinance to demonstrate how that authority was exceeded. Meyer v. City of Dickinson, 451 N.W.2d 113, 116 (N.D.1990). The ordinance is presumed valid, and a court will not declare the ordinance invalid unless it is "clearly arbitrary, unreasonable and without relation to public health, safety, morals or public welfare." Meyer v. City of Dickinson, supra, 451 N.W.2d at 116; Tayloe v. City of Wahpeton, supra, 62 N.W.2d at 35; see also City of Minot v. Central Avenue News, Inc., 308 N.W.2d 851, 858 (N.D.), appeal dismissed, 454 U.S. 1117, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981).

A & H asserts that the ordinance is arbitrary and unreasonable because it fails to set out specific criteria for granting a license. In support of this argument, A & H relies almost exclusively upon Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131 (N.D.1984). Mini Mart was one of two applicants for two available retail beer licenses. Mini Mart's application complied with all of the sanitation, safety and health requirements imposed by the city's ordinances. The city had retained discretion through its ordinance to deny a license if "the structure is not sufficient for the general welfare and safety of the general public." Mini Mart, supra, 347 N.W.2d at 134 n. 1. The City Council members expressed concerns that the store was frequented by minors, that it was close to a college campus, that gasoline was also sold there, and that the single attendant for all phases of the convenience store's operations would be unable to adequately police beer sales to minors. The city denied the license on the basis of these unwritten ad hoc criteria, wholly unrelated to the criteria listed in the ordinance.

Our discussion on appeal centered upon the city's failure to reserve in the ordinance its statutorily granted discretion in granting or denying liquor licenses. Commenting upon Thielen v. Kostelecky, 69 N.D. 410, 287 N.W. 513 (1939), we stated:

"Thus, the Court in Kostelecky recognized that municipalities have been given the power by the State to exercise judgment and discretion in the granting or denial of liquor licenses. However, the Court also pointed out that, in order to make the grant of such power effectual, the municipality must enact ordinances reserving the legislative grant of discretion and prescribing reasonable rules and standards to govern the exercise of that discretion."

Mini Mart, supra, 347 N.W.2d at 139.

A & H urges that the ordinance here fails to adequately reserve the City's discretion because it fails to spell out specific requirements for determining whether a license should be granted. However, we imposed no such requirement in Mini Mart, and cautioned against such a result:

"We do not intend to imply that a municipal liquor licensing ordinance scheme must specifically address all conceivable factual variations which might arise and which would legitimately and reasonably support a decision that a particular license ought not issue. We hold only that a municipality must reserve its legislative grant of discretion through the use of written criteria which both adequately inform applicants of the standards and policies to be contemplated by the municipality, and adequately guide the licensing authority in arriving at its decision."

Mini Mart, supra, 347 N.W.2d at 141. In Mini Mart, supra, 347 N.W.2d at 139, we quoted with approval from Kostelecky, supra, 287 N.W. at 516, that there is no "intention that the governing body of a city shall serve merely as a rubber stamp for the approval of applications for licenses." The City would be left as a mere "rubber stamp" if, as A & H urges, the ordinance must spell out, chapter and verse, the specific requirements for granting or denying a license.

The ordinance in this case satisfies the requirements of Mini Mart: it reserves the legislative grant of discretion through written criteria that adequately guide applicants and the licensing authority. It contains specific provisions detailing the qualifications for a license and setting out the application process. The required qualifications include good moral character, financial stability, access to a suitable disposal site, insurance coverage, and bonding. A & H has failed to demonstrate that the ordinance is clearly arbitrary, unreasonable, and without relation to the public health, safety, morals or welfare.

Mini Mart is also distinguishable on other grounds. The applicant in Mini Mart met all requirements enumerated in the ordinance. In this case, A & H failed to fulfill several requirements, including specific insurance and bonding requirements. Furthermore, A & H was not the only qualified applicant for an available license, a circumstance we deemed significant in Mini Mart:

"There is a significant difference between a situation where there are several applicants which have met the...