E. Perry Iron & Metal v. City of Portland

• Decision Date: 15 January 2008
• Docket Number: Docket: Cum-07-176.
• Citation: 941 A.2d 457,2008 ME 10
• Parties: E. PERRY IRON & METAL CO., INC. v. CITY OF PORTLAND.
• Court: Maine Supreme Court

941 A.2d 457

2008 ME 10

E. PERRY IRON & METAL CO., INC. v. CITY OF PORTLAND.

Docket: Cum-07-176.

Supreme Judicial Court of Maine.

Argued: October 23, 2007.

Decided: January 15, 2008.

Marshall J. Tinkle, Esq., David Hirshon, Esq., Tompkins, Clough, Hirshon & Langer, P.A., Portland, ME, for the appellant.

Gary C. Wood, Esq., Penny Littell, Esq. City of Portland, Office of Corporation Counsel, Portland, ME, for the appellee.

Rebecca Warren Steel, Esq., Maine Municipal Association, Augusta, ME, for amicus curiae.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

MEAD, J.

[¶ 1] E. Perry Iron & Metal Co., Inc., appeals from a judgment of the Superior Court (Cumberland County, Delahanty, J.} entering judgment in favor of the City of Portland. It argues that the Superior Court incorrectly found the City's scrap metal recycling facility ordinance was not preempted by state statute and was not unconstitutional under the Maine and U.S. Constitutions. We affirm the judgment.

I. BACKGROUND

[¶ 2] E. Perry Iron & Metal Co., Inc. has operated a scrap metal recycling facility in Portland for decades, and since the 1980s it has held an annual operating license from the City under the Junkyard and Automobile Graveyard statute (junkyard statute). 30-A M.R.S. §§ 3751-3760 (2007). In the fall of 2004, the City enacted its Scrap Metal Recycling Facilities ordinance (SMRF ordinance), which closely regulated scrap metal recycling facilities. Perry alleges that the enactment of this ordinance followed a breakdown in negotiations between it and the City regarding the redevelopment of the neighborhood in which Perry operates and the relocation of Perry's operations.

[¶ 3] In September 2004, the City took no action to process Perry's junkyard permit renewal application. Perry filed a complaint in December 2004 seeking relief and challenging the City's failure to take action, and the Superior Court ruled that Perry was entitled to a renewed permit, effective through September 30, 2006. We dismissed the City's subsequent appeal as interlocutory. E. Perry Iron & Metal Co., Inc. v. City of Portland, 2006 ME 52, ¶ 8, 896 A.2d 956, 959.

[¶ 4] Following this dismissal, the parties submitted the matter to the trial court on briefs. The Superior Court found that Perry is in the business of recycling scrap metal, accepts ferrous and nonferrous metals, and handles batteries, which contain hazardous materials.

[¶ 5] Perry argued that the SMRF ordinance is preempted by the Maine Hazardous Waste, Septage and Solid Waste Management Act, 38 M.R.S. §§ 1301-1319-Y (2007) (Solid Waste Act), and that if it is not preempted, it is unconstitutional on the following grounds: as a violation of state and federal equal protection guarantees; as a violation of substantive due process rights; as a taking of private property without compensation; and as a violation of the commerce clause of the United States Constitution. The City argued that the SMRF ordinance was permitted by the junkyard statute and that it is not unconstitutional.¹

[¶ 6] The trial court found that the SMRF ordinance was not preempted by the Solid Waste Act and that it was not unconstitutional. Perry has filed the instant appeal.

II. DISCUSSION

A. Relevant Law

[¶ 7] Three statutes have a bearing on this case. First, since the 1980s, Perry has been licensed under the junkyard statute, which sets minimum requirements for the operation of junkyards and related facilities, and which permits municipalities to regulate aspects of their operations. See 30-A M.R.S. §§ 3753, 3754-A. Second, the Solid Waste Act regulates the operation of solid waste facilities and requires a permit for the operation of such a facility. See 38 M.R.S. .§ 1310-N. Third, the home rule statute grants municipalities the authority expressed in the home rule provision of the Maine Constitution, providing them the authority to "exercise any power or function . . . which is not denied expressly or by clear implication. . . ." 30-A M.R.S. § 3001 (2007).

[¶ 8] Maine's junkyard statute clearly applies to Perry's operations. The parties stipulated that Perry recycles scrap metal, which places Perry within the definition of "junkyard" under the statute. 30-A M.R.S. § 3752(4)(C) (a "junkyard" is an area used to, among other things, "dismantle ... scrap ferrous or nonferrous material"). Further, the parties have operated for years on the assumption that the junkyard statute applied: Perry repeatedly applied for, and the City repeatedly granted, the permit required by the junkyard statute. 30-A M.R.S. § 3753. Under this statute, the City's home rule authority is not affected; the statute explicitly states that it does not impinge on a municipality's home rule authority. 30-A M.R.S. § 3754-A(7).

[¶ 9] The Solid Waste Act also regulates the handling of waste. It defines "solid waste" as any discarded or useless, non-liquid, solid material that is not hazardous, biomedical, septic, or agricultural waste. 38 M.R.S. § 1303-C(29). The fact that waste or material may have market value does not exclude it from this definition. Id. A "solid waste facility" is one that handles solid waste, with some exclusions for facilities that burn waste to dispose of it or to produce energy. 38 M.R.S. § 1303-C(31).² "Handle" is defined so as to include recycling. 38 M.R.S. § 1303-C(14).

[¶ 10] The Maine Department of Environmental Protection has adopted rules under the Solid Waste Act. 3 C.M.R. 06 096 400-1 to 42 (2001) (Rules). A license is required to operate a solid waste facility in the state. 38 M.R.S. § 1310-N; 3 C.M.R. 06 096 400-12 § 2(A)(1). The DEP is directed to issue a license for a solid waste facility when it is clear that the facility "will not contaminate any water of the State, contaminate the ambient air, constitute a hazard to health or welfare, or create a nuisance." 3 C.M.R. 06 096 400-15 § 3(D); 38 M.R.S. § 1310-N(1)(A). Among other things, an applicant for a license must demonstrate that it has the financial and technical ability to operate, maintain, and close the facility; that the applicant can provide for traffic movement; that the facility must not unreasonably affect air quality; that there will be no discharge of any pollutants without a state license, and in any case, may not discharge any pollutant that would affect surface water quality or pose an unreasonable risk to ground water aquifers; and that there will be no unreasonably adverse effect on other natural resources. 3 C.M.R. 06 096 400-16 to 23 § 4(B)-(D), (6)-(I), (K).

[¶ 11] In regulating solid waste facilities, municipalities may not adopt standards stricter than relevant state law. 38 M.R.S. § 1310-U. "[M]unicipalities ... may enact ordinances with respect to solid waste facilities that contain standards the municipality finds reasonable ... provided that the standards are not more strict than those contained in this chapter and in [38 M.R.S. §§ 480-A to BB, 481-490] and the rules adopted under these articles."³ Id. (emphasis added).

[¶ 12] The SMRF ordinance defines a scrap metal recycling facility as:

an area used to receive, process, or store any form of metal that is already scrap for recycling or reuse and which handles, removes, or disposes of waste as part of the processing. The definition shall include an automobile recycling facility as defined in 30-A M.R.S.A. § 3752(1-A).

Portland, Me., Code § 31-4 (Jan. 1, 2005): It requires that anyone operating such a facility have an annual license. Portland, Me., Code § 31-5. Rules implementing the SMRF ordinance were promulgated by the City's department of planning and development. These rules require baseline groundwater and soil testing, and any required remediation following such testing; they regulate the dismantling of motor vehicles and other items containing waste and the handling of waste; and they dictate setbacks and visual screens.

B. Analysis

[¶ 13] Issues of law are reviewed de novo. Peterson v. State Tax Assessor, 1999 ME 23, ¶ 6, 724 A.2d 610, 612. The interpretation of a local ordinance is a question of law. Logan v. City of Biddeford, 2006 ME 102, ¶ 8, 905 A.2d 293, 295. In interpreting a statute or ordinance, reviewing courts "look first to the plain language of the provisions to be interpreted." Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 22, 868 A.2d 161, 167.

[¶ 14] Home rule is granted to municipalities by the Maine Constitution and by statute. Mr. CONST. art. VIII, pt. 2, § 1; 30-A M.R.S. § 3001.⁴ The home rule statute states that it is to be liberally construed to effect its purposes, that there is a presumption in favor of home rule, and that preemption is not to be implied unless local action would frustrate the purposes of state law. Id. "Only where the municipal ordinance prevents the efficient accomplishment of a defined state purpose should a municipality's home rule power be restricted, otherwise [municipalities] are free to act to promote the well-being of their citizens." School Comm. v. Town of York, 626 A.2d 935, 938 n. 8 (Me.1993); 30-A M.R.S. § 3001(3).

[¶ 15] "[T]he inquiry on a preemption question is whether the local action would frustrate the purpose of any state law." Sawyer Envtl. Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, ¶ 27, 760 A.2d 257, 263-64 (quotation marks omitted). Local action will be preempted by implication where it "prevents the efficient accomplishment of a defined state purpose. . . ." School Comm., 626 A.2d at 938 n. 8; see also Cent. Me. Power Co. v. Town of Lebanon, 571 A.2d 1189, 1194-95 (Me.1990).

[¶ 16] The purposes of the Solid Waste Act are clearly stated. 38 M.R.S. § 1302. These include: "establish[ing] a coordinated statewide waste reduction, recycling and management program"; "pursu[ing] and implement[ing] an integrated approach to hazardous and solid waste management"; "prefer[ing] waste management options with lower health and environmental risk"; and noting that ...