Indiana Waste Systems, Inc. v. Board of Com'rs of Howard County

• Decision Date: 26 April 1979
• Docket Number: No. 2-277A58,2-277A58
• Citation: 180 Ind.App. 385,389 N.E.2d 52
• Parties: INDIANA WASTE SYSTEMS, INC., Appellant (Plaintiff Below), v. BOARD OF COMMISSIONERS OF the COUNTY OF HOWARD, Indiana, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 52

389 N.E.2d 52

180 Ind.App. 385

INDIANA WASTE SYSTEMS, INC., Appellant (Plaintiff Below), v. BOARD OF COMMISSIONERS OF the COUNTY OF HOWARD, Indiana Appellee (Defendant Below).

No. 2-277A58.

Court of Appeals of Indiana, Second District.

April 26, 1979.

Frederick J. Graf, Indianapolis, James R. Butcher, Kokomo, for appellant.

Theo. L. Sendak, Atty. Gen., Indianapolis, Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Thomas J. Simmons, Kokomo, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Indiana Waste Systems, Inc. (Systems) appeals the trial court's decision in this declaratory judgment action holding Howard County Ordinance No. 1969-3 ¹ (the Ordinance) valid, claiming the trial court erred in that: (1) the State had preempted the field of sanitary landfill regulation; (2) Section 401 of the Ordinance encroached upon the statutory powers of the Howard County Board of Zoning Appeals; and (3) Section 401 of the Ordinance sets forth no standards for its application and therefore violates the due process and equal protection clauses of the United States and Indiana Constitutions.

We reverse and find Section 401 of the Ordinance invalid.

FACTS

This declaratory judgment action involves a Howard County ordinance regulating sanitary landfills, prosaically known as garbage dumps. ² The ordinance requires, Inter alia, that all landfill sites in Howard County be approved by the Howard County Board of Commissioners (Commissioners).

Systems, an Indiana corporation engaged in collecting and disposing of solid waste, purchased a 100-acre tract of land in Howard County with the intent of converting it to a sanitary landfill. Systems conducted engineering tests to determine the suitability of the land. It then secured the approval of the Howard County Board of Zoning Appeals, received a favorable advisory opinion from the Howard County Plan Commission, and secured permits for the landfill's operation from the Indiana State Board of Health, the Indiana Stream Pollution Control Board, and the Kokomo-Howard County Board of Health.

After satisfying the requirements of these governmental agencies, Systems petitioned the Commissioners for approval of the landfill site, pursuant to Section 401 of the Ordinance. Section 401 states:

Site shall be subject to the approval of the Board of Commissioners of the County of Howard, Indiana. (hereinafter referred to as Section 401)

The Commissioners held three hearings at which Systems and those opposed to site approval for the landfill made presentations. On July 22, 1974, the Commissioners denied approval of the landfill site.

In January, 1975, at the request of Systems, the Commissioners again held two hearings on the matter. And approval was denied for a second time on February 18, 1975.

Systems filed this action for a declaratory judgment on May 1, 1975, seeking to have the Ordinance ruled invalid. On September 1, 1976, the trial court ruled the ordinance valid.

Systems appeals.

ISSUES

ISSUE ONE Did Systems properly proceed under the Uniform Declaratory Judgment Act (Ind.Code 34-4-10-1 to -16)?

ISSUE TWO Did the Indiana legislature preempt the power of local government to regulate sanitary landfills by the passage of the 1972 Environmental Management Act (Ind.Code 13-7-1-1 to 18-1)?

ISSUE THREE Does Section 401 encroach upon the statutory powers of the Howard County Board of Zoning Appeals?

ISSUE FOUR Is the Ordinance unconstitutional in that it violates the due process and equal protection clauses of the United States and Indiana Constitutions?

As to Issue One, Commissioners maintain that Ind.Code 17-1-14-24 provided Indiana Waste Systems with the sole means of appealing a decision of the Commissioners, therefore a declaratory judgment action could not be maintained. Systems asserts its rights are vitally affected by the ordinance in question making this precisely the type of situation for which the Uniform Declaratory Judgment Act was designed.

As to Issue Two, Systems contends that the 1972 Environmental Management Act preempted any local regulation of sanitary landfills by calling for regulation on a statewide basis. Commissioners respond that, instead of preempting local landfill regulation, the Environmental Management Act has given local governments more power to regulate solid waste disposal.

As to Issue Three, Systems argues that Ind.Code 18-7-5-82 gives the Board of Zoning Appeals sole power to hear and decide special land use questions, and that by requiring landfill site approval, the Commissioners are attempting to exercise power already delegated to the Board of Zoning Appeals. Commissioners counter that Ind.Code 18-7-5-82 does not act as a limit on the power of county commissioners, and furthermore, that Ind.Code 17-2-22-4 gives the Commissioners specific power to pass ordinances regulating the disposal of solid waste.

As to Issue Four, Systems maintains that the ordinance violates equal protection because it is so vague that it gives local officials the power to arbitrarily discriminate between citizens. In addition, the ordinance violates due process in that it sets forth no standards which notify a person what is required of him thereby making it subject to arbitrary application. Commissioners maintain there is no evidence that the ordinance has been applied in a discriminatory or arbitrary manner, and that the ordinance is not unconstitutionally vague simply because clear language might have been used.

Although we reverse as to Issue Four, we discuss the other issues raised because of the likelihood that they may rise again.

DECISION

ISSUE ONE

CONCLUSION Systems was not precluded from bringing a declaratory judgment action by its failure to appeal the Commissioners' decision under Ind.Code 17-1-14-24.

Like Monet repetitively painting his beloved lily pond at Giverny, courts are wont to state the general principle that a litigant must exclusively pursue available statutory remedies. Marhoefer Packing Co. v. Ind. Dept. of State Revenue (1973), 157 Ind.App. 505, 301 N.E.2d 209; Decatur County Rural Elec. Membership Corp. v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857; Cooper v. County Bd. of Review of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533. See Paynter v. Marion County Superior Court, Room No. 5 (1976), 264 Ind. 345, 344 N.E.2d 846; Brutus v. Wright (1975), 163 Ind.App. 366, 324 N.E.2d 165; State v. Frye (1974), 161 Ind.App. 247, 315 N.E.2d 399. But it is not necessarily so. See Wilson v. Review Bd. of Indiana, (1979), Ind., 385 N.E.2d 438; I.H.S.A.A. v. Raike (1975), Ind.App., 329 N.E.2d 66.

The Commissioners point to Ind.Code 17-1-14-24 as the exclusive remedy available to Systems. It provides:

From all decisions of such commissioners there shall be allowed an appeal to the circuit (or common pleas) Court, by any person aggrieved; but if such person shall not be a party to the proceeding such appeal shall not be allowed, unless he shall file in the office of the county auditor his affidavit setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicitly the nature of his interest. (emphasis added).

The words "any decision" have been interpreted consistently to mean only decisions which are "judicial" in character. Board of Commissioners of Dearborn County v. Droege (1946), 224 Ind. 446, 68 N.E.2d 650; Farley v. Board of Commissioners of Hamilton County (1890), 126 Ind. 468, 26 N.E. 174; Bryant v. Lake County Trust Company (1975), Ind.App., 334 N.E.2d 730; Christy v. Board of Commissioners of Porter County (1973), 156 Ind.App. 268, 295 N.E.2d 849; Kraus v. Board of Commissioners of County of Miami (1907), 39 Ind.App. 624, 80 N.E. 544.

Bryant v. Lake County Trust Company, supra, used this language:

The seemingly broad language of IC 1971, 17-1-14-24, Supra, authorizing appeals from "all decisions" of a Board of County Commissioners, has been consistently construed by our courts as authorizing only appeals from decisions of such Boards which are judicial in character. . . . Thus, any act by such a Board which is administrative, ministerial, discretionary or legislative in nature is not reviewable under the authority of IC 1971, 17-1-14-24, Supra. (citations omitted)

334 N.E.2d at 734.

So, if Systems was appealing the County Commissioner's decision denying approval of the landfill site, we would face the delicate task of determining whether such a decision (tantamount to licensing) was "judicial in character". ³ If the decision be deemed judicial in character, the statutory appeal procedure should have been followed.

But such is not the case. Systems has Not challenged the Commissioners' act of denying the site approval, whether that act be judicial, administrative, or discretionary. Rather it asserts that the Ordinance itself which is a Legislative enactment of the County Commissioners is invalid. ⁴ In challenging the validity of the Ordinance, Systems is assailing a Legislative determination by the Commissioners, not a judicial decision. Such legislative decisions are not appealable under the procedure set out in Ind.Code 17-1-14-24. Bryant v. Lake County Trust Co., supra; Christy v. Board of Commissioners of Porter County, supra.

Had Systems attempted to challenge the validity of the Ordinance by appealing under Ind.Code 17-1-14-24, such an appeal would have been subject to dismissal because it was not judicial in character. Bryant v. Lake County Trust Co., supra; Christy v. Board of Commissioners of Porter County, supra. Thus, the statutory remedy of appeal was not available to Systems, and Systems' declaratory judgment action can not be defeated on failure to take an appeal. ⁵

ISSUE TWO

CONCLUSION Local government regulation of sanitary landfills was not preempted by the 1972 Environmental Management Act (13-7-1-1 to -18-1).

The power of county commissioners to regulate solid waste disposal is set forth in Ind.Code...