Johnson v. Sunray Services, Inc.

• Decision Date: 23 September 1991
• Docket Number: No. 90-329,90-329
• Citation: 816 S.W.2d 582,306 Ark. 497
• Parties: , 34 ERC 1263 Charles JOHNSON, County Judge, et al., Appellants, v. SUNRAY SERVICES, INC., Appellee.
• Court: Arkansas Supreme Court

Page 582

816 S.W.2d 582

306 Ark. 497, 34 ERC 1263

Charles JOHNSON, County Judge, et al., Appellants, v. SUNRAY SERVICES, INC., Appellee.

No. 90-329.

Supreme Court of Arkansas.

Sept. 23, 1991.

George E. Butler, Jr., Fayetteville and George D. Oleson, Rogers, for appellants.

Jack Butt and Steve Weaver, Little Rock, for appellee.

BROWN, Justice.

This appeal comes to us from a decree by the chancery judge voiding a Washington County quorum court ordinance to regulate solid waste disposal facilities ("landfills") on constitutional grounds. The appellants are Washington County, members of the quorum court, other Washington County officials and the Director of the Arkansas Department of Pollution Control and Ecology ("Pollution Control"). The appellee is Sunray Services, Inc. ("Sunray"), a corporation that provides solid waste disposal services and that had applied to the quorum court for site approval to provide such landfill services at Durham in Washington County. The effect of voiding the quorum court ordinance was to allow Sunray to proceed with plans to construct the landfill.

The appellants raise several issues on appeal, but we reverse on the issue of whether the ordinance was rationally related to a legitimate government purpose. We hold that it was. We further decline to affirm on the basis of the various issues raised by Sunray as additional arguments in support of the chancellor's decree.

The facts in this case are largely without dispute, although the findings and conclusions that can be gleaned from them are the subject of intense controversy. On June 30, 1989, Miller Matthews, chairman of the board and sole shareholder of Sunray, acquired 1,850 acres in the Durham area and immediately granted Sunray an option to purchase that land. On July 14, 1989, Sunray requested site approval for a landfill in a letter to the quorum court. The quorum court referred the request to its Environmental Affairs Committee ("EAC"). Under Pollution Control rules the request had to be acted on within sixty days, or the request would be deemed approved.

Over the next sixty days the EAC had two meetings in which Sunray's request was discussed--July 25, 1989, and August 21, 1989. At the first meeting EAC heard comments from citizens opposed generally to landfills and from a geologist opposed to the specific site. Sunray consultants also discussed the proposed Durham site before the committee. At the close of the meeting, the committee recommended a moratorium on any new landfills in the county until a regional study could be completed.

The quorum court considered landfill limits in general and the Durham site in particular at its August 10, 1989 meeting. Public comment was received regarding buffer zones from main water supplies and a landfill moratorium. Sunray's counsel spoke in favor of the Durham proposal. The meeting ended with the quorum court's sending the moratorium issue back to EAC for additional consideration.

On August 21, 1989, EAC considered and heard comments on the Durham proposal, Sunray's past record, buffer zones for landfills in general, and pending Environmental Protection Agency regulations. Sunray's attorney also answered questions about the project and spoke in favor of it. The committee concluded the meeting by recommending that the quorum court adopt more restrictive landfill standards than Pollution Control had done.

The quorum court met again on September 14, 1989. At a prolonged meeting a general restriction ordinance was discussed as well as Sunray's site proposal. Citizen comments were received both in favor of a restrictive ordinance and opposed. Richard Starr, the Beaver Water District director, and Dr. Richard Meyer, a limnologist, spoke in favor of some buffer zone between landfills and main water sources. Sunray's counsel made a presentation in favor of the site proposal. By a vote of 11 to 2 the quorum court passed Ordinance No. 89-23, which established a two-mile buffer zone between landfills and main water sources. That ordinance reads in pertinent part:

ARTICLE 1. No hazardous or other solid waste disposal facility as defined by Arkansas law shall be located within two (2) miles of the main water sources within The ordinance included civil remedies for violations and an emergency clause making it effective immediately. The quorum court then heard from two Sunray consultants on the issue of the landfill request at Durham. The Sunray consultants did not discuss the effectiveness of a buffer zone to protect main water sources. Armed with the ordinance, the quorum court promptly denied Sunray's Durham site request on the basis that the site fell within two miles of the Middle Fork of the White River--a main water source listed in the ordinance and a Beaver Lake tributary.

Washington County, specifically Beaver Lake, Illinois River, Middle, Main and West Forks of the White River, Lee Creek, Prairie Grove Lake, Lincoln Lake, Clear Creek, Spring Creek, Fall Creek, Richland Creek, Barron Fork, Fly Creek, Wedington Creek, Cove Creek, Muddy Fork, Ballard Creek, Evansville Creek and Cincinnati Creek, and any other main water source so designated by the Quorum Court.

Sunray appealed the quorum court's decision to Pollution Control on October 6, 1989, by filing a preapplication for a landfill with that department and requesting the Director of Pollution Control to review the quorum court's actions. The director did conduct a review, and on December 27, 1989, he overruled the quorum court's denial and authorized Sunray to continue with the preapplication process for site approval. Before Pollution Control could make its site evaluation, the state Attorney General issued an opinion on February 27, 1990, which caused the director of Pollution Control to halt all further activity relative to the Durham site until the issue of the ordinance's validity and the denial of Sunray's request by the quorum court could be finally decided.

Sunray filed suit on March 2, 1990, to have the ordinance declared unconstitutional and invalid, and Washington County counterclaimed to enjoin Sunray from violating the ordinance. Trial was held before the chancellor on May 29-30, 1990. Sunray's testimony consisted of evidentiary depositions of quorum court members and live testimony of a Pollution Control hydrogeologist (Mark Witherspoon), an engineer employed by SCS Engineers of Covington, Kentucky (Jim Walsh), a second hydrogeologist (Dr. William White, a professor at Pennsylvania State University), and its owner (Miller Matthews). Washington County offered the testimony of quorum court member and EAC Chair Lois Imhoff, and that of Beaver Water District director Richard Starr.

The decree of the chancery judge was entered on August 3, 1990. It struck down the ordinance as unconstitutional on due process and equal protection grounds and it further dismissed Washington County's counterclaim. In the decree the chancellor made findings of fact, including the following:

(16) That the overwhelming testimony of the experts reflects that proximity to a water source is not a reliable basis for predicting whether a landfill may pollute nearby streams or rivers.

(17) That the experts convincingly established that rational and objective factors to consider in siting a landfill include geology of the land, degree of slope, directional flow of ground water, and the texture of the soil.

(18) That Washington County Ordinance No. 89-23 as adopted was not based upon rational and objective factors but rather upon negative attitudes and fears, community opposition and adverse public sentiment.

(19) That while genuinely wanting to protect water sources in Washington County, members of the Quorum Court arbitrarily and irrationally adopted Ordinance No. 89-23 to deny Sunray's request for specific geographic site approval and to halt its effort to site a landfill at the Durham Site.

(20) That by enacting Ordinance No. 89-23 the Quorum Court has effectively blocked Sunray's application process without specifically naming any factors which inherently threaten the public health, welfare, safety and environment regardless of proper design and operation of the landfill.

(21) That by enacting Ordinance No. 89-23, the Quorum Court has effectively denied all potential landfill operators and potential users of land for landfill purposes the right to pursue an application process without naming factors which inherently threaten the public health, welfare, safety and environment regardless of proper siting, design and operation of the landfill.

The decree also contained these conclusions of law:

(4) That Washington County Ordinance No. 89-23 bears no rational relation to any legitimate governmental purpose and is therefore unconstitutional, illegal, invalid and unenforceable as a violation of due process of law. U.S. Const.Amend. XIV, Section 1; Ark. Const. Art. 2. (Citing case authority.)

(5) That Washington County Ordinance No. 89-23 creates an unlawful classification against landfill operators and users of land for landfill purposes which bears no rational relation to any legitimate governmental purpose and is therefore unconstitutional, illegal, invalid and unenforceable as a violation of equal protection of law. U.S. Const.Amend. XIV, Section 1. (Citing case authority.)

In deciding this case we first consider the pollution threat involved. With landfills the threat of pollution of water sources is directly related to underground water flow. This is so because the potential exists for landfill refuse to mix with rain, seep underground, travel along the underground water course for some distance, and eventually pollute surface water sources. There was considerable expert testimony offered by Sunray at trial that surface conditions and distance bear little or no relationship to the direction of underground water flow. Indeed, virtually all of the scientific testimony presented at trial supported Sunray's contentions....