Jacobson v. Swann
| Decision Date | 22 November 2002 |
| Docket Number | No. S-01-602.,S-01-602. |
| Citation | 264 Neb. 961,653 N.W.2d 482 |
| Court | Nebraska Supreme Court |
| Parties | Michael JACOBSON, Appellee, v. SOLID WASTE AGENCY OF NORTHWEST NEBRASKA (SWANN), Appellant. |
Dennis D. King, of Smith, King, and Freudenberg, P.C., Gordon, for appellant.
Thomas A. Hawbaker, of Law Offices of Thomas A. Hawbaker, and Joe M. Hawbaker for appellee, and, on brief, Michael Jacobson, pro se.
Solid Waste Agency of Northwest Nebraska (SWANN) appeals from a declaratory judgment entered by the district court for Dawes County which determined that Michael Jacobson was not liable to SWANN for solid waste collection, transportation, and disposal service charges.
Jacobson, a resident of Gordon, Nebraska, initiated this action by filing a pro se petition for declaratory judgment in the district court for Dawes County. He sought a declaration that he is not obligated to pay solid waste collection, transportation, and disposal charges assessed by SWANN because he does not use or benefit from SWANN's services. In its answer, SWANN denied Jacobson's claim that he does not use or benefit from its services and alleged that Jacobson did not comply with its rules and regulations for opting out of service charge liability.
At a hearing on November 7, 2000, the parties advised the court that Jacobson would be filing a motion for summary judgment challenging the legal validity of the rules and regulations relied upon by SWANN. Jacobson subsequently filed a motion for summary judgment asserting that three specific rules adopted by SWANN on January 21, 1999, were not authorized under the Integrated Solid Waste Management Act, Neb.Rev.Stat. § § 13-2001 to 13-2043 (Reissue 1997), and violated his rights under the state and federal constitutions. A hearing on the motion was held on January 31, 2001. The parties offered a stipulation of facts which was received in evidence. Counsel for SWANN then advised the court that the parties had agreed to file an additional stipulation and requested that the matter be deemed submitted on the merits for final disposition. Thereafter, the parties filed a "Stipulation for Submission of Case" which referred to the prior receipt by the court of the factual stipulation and further stated that "the parties agree that this case shall be deemed submitted for a decision on the merits, and the decision of the Court shall be considered a final judgment in this matter."
Jacobson is the sole resident and tenant of real property located at 613 North Ash Street, Gordon, Nebraska. SWANN is a political subdivision created under the Interlocal Cooperation Act, Neb.Rev.Stat. §§ 13-801 to 13-827 (Reissue 1997), and the Integrated Solid Waste Management Act. The city of Gordon, located in Sheridan County, Nebraska, is a member of SWANN, and Jacobson's residence in Gordon is located within SWANN's jurisdictional area.
SWANN was formed for the purpose of management, collection, disposal, and recycling of solid waste within its jurisdictional area. As part of its official functions, SWANN picks up and disposes of or receives solid waste in each of its member jurisdictions. SWANN provides additional services and benefits within each member jurisdiction, including the provision of dumpsters and solid waste containers, the provision of recycling services, the sponsorship of educational programs and community events dealing with solid waste management, the collection of hazardous materials and paint, the provision of crushed concrete for the use of municipalities, and the provision of special disposal sites and assistance for natural disasters.
Since January 21, 1999, SWANN has regularly billed Jacobson for solid waste collection, transportation, and disposal services at the rate of $14.80 per month. SWANN claims that the sum of $382.29 is due and owing on such billings as of November 1, 2000. Jacobson denies that he utilized the services of SWANN during the period covered by such billings, or at any time. Jacobson claims that he personally collects and transports all of his solid waste to an alternate solid waste landfill owned and operated by the Oglala Lakota Nation. In support of his position, Jacobson produced 13 "receipt[s] of payment" from Oglala Lakota Nation Solid Waste Management in Pine Ridge, South Dakota, bearing dates between April 30, 1999, and January 22, 2001. He also produced a receipt, dated November 23, 1999, from an entity designated as "Solid Waste Mgmt." Some of the receipts describe "bags of trash" or "bags of garbage" in varying or unspecified quantities and further describe amounts paid by Jacobson, presumably for disposal of such items. The receipts also reflect Jacobson's address as "613 N. Ash, Gordon, NE." Although it is not clear from the stipulation of facts whether any of these receipts were ever submitted to SWANN, it is clear that Jacobson has not complied with SWANN's rules and regulations adopted pursuant to § 13-2023. Specifically, Jacobson has not provided the written statement required by SWANN's regulation § 4.05(B), and he has not provided the receipts required by § 4.05(E).
Based upon the foregoing stipulated facts, the district court determined that although Jacobson was a "`solid waste generator,'" SWANN had no authority to "regulate" Jacobson or his solid waste because Jacobson had taken the steps required by § 13-2020(4) to exempt himself from SWANN's charges by providing evidence that he disposed of his solid waste at an alternate facility. The court further held that a portion of SWANN's rules and regulations requiring specific proof to exempt a solid waste generator from SWANN's charges was unreasonable and therefore invalid. Based upon these determinations, the district court concluded that Jacobson was not liable to SWANN for any fees or charges it sought to collect, and entered judgment in favor of Jacobson. SWANN perfected this timely appeal, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state. See Neb. Rev.Stat. § 24-1106(3) (Reissue 1995).
SWANN assigns, restated and consolidated, that the district court erred in (1) construing the Integrated Solid Waste Management Act to limit SWANN's jurisdiction and authority to regulate and (2) granting Jacobson's motion for summary judgment as to SWANN's regulation § 4.05.
In a case in which the facts are stipulated, an appellate court reviews the case as if trying it originally in order to determine whether the facts warranted the judgment. J.D. Warehouse v. Lutz & Co., 263 Neb. 189, 639 N.W.2d 88 (2002); Ray Tucker & Sons v. GTE Directories Sales Corp., 253 Neb. 458, 571 N.W.2d 64 (1997). When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Shirley v. Neth, 264 Neb. 138, 646 N.W.2d 587 (2002); Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).
SWANN derives its authority from the Integrated Solid Waste Management Act (hereinafter the Act), enacted in 1992, in which the Legislature expressly recognized that local governments are "best positioned to develop efficient solid waste management programs." § 13-2002(5). The Act requires each county or municipality to provide for disposal of solid waste generated within its jurisdiction. § 13-2020(1). Under the Act, "[t]he governing body of a county, municipality, or agency may make all necessary rules and regulations governing the use, operation, and control of a facility or system." § 13-2020(4). Section 13-2023 grants express authority to pass such regulations and states in relevant part: "A county, municipality, or agency may, by ordinance or resolution, adopt regulations governing collection, source separation, storage, transportation, transfer, processing, treatment, and disposal of solid waste within its solid waste jurisdiction area as necessary to protect the public health and welfare and the environment." It is clear from established case law, as well as from a plain reading of the Act, that a political subdivision such as SWANN is "expressly empowered to establish ordinances regulating the collection and removal of garbage." See Tracy v. City of Deshler, 253 Neb. 170, 174, 568 N.W.2d 903, 907 (1997). Accord Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996).
In Village of Winside v. Jackson, 250 Neb. at 856, 553 N.W.2d at 480, we held that under the Act as it was then written, "[a] municipality can impose a garbage fee on only those persons that actually use the garbage services provided." We therefore concluded that a village ordinance which imposed a garbage fee on every occupied residence and business, regardless of whether the resident or business owner chose to use the village garbage system, was contrary to the plain language of the Act and thus invalid insofar as it required payment for services which were not used.
In response to Village of Winside, a bill was introduced during the 1997 session of the Legislature to amend the language of § 13-2020 in order to "more clearly define when a premises is served by a solid waste collection system" and to "ensure that the solid waste systems remain viable." Introducer's Statement of Intent, L.B. 135, Natural Resources Committee, 95th Leg., 1st Sess. (February 26, 1997). The amendment, as initially proposed during the committee's hearing, would have allowed subdivisions which owned and operated solid waste systems to charge a flat fee to all residents by reason of the fact that a waste disposal system was present and available for their use. Additional language, however, was...
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