Pressley v. Lancaster County, No. 3274.

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 343 S.C. 696,542 S.E.2d 366
• Parties: Jerry A. PRESSLEY, Appellant, v. LANCASTER COUNTY, a political subdivision of the State of South Carolina, Respondent.
• Decision Date: 02 January 2001
• Docket Number: No. 3274.

343 S.C. 696
542 S.E.2d 366

Jerry A. PRESSLEY, Appellant,
v.
LANCASTER COUNTY, a political subdivision of the State of South Carolina, Respondent

No. 3274.

Court of Appeals of South Carolina.

Heard November 8, 2000.

Decided January 2, 2001.

Rehearing Denied March 12, 2001.

343 S.C. 700

J. Edward Bradley and S. Jahue Moore, both of Wilson, Moore, Taylor & O'Day, of West Columbia; and Don S. Rushing, of Rushing & Griffith, of Lancaster, for appellant

Melvin B. McKeown, Jr., of McKeown Law Firm, of York, for respondent.

PER CURIAM:

Jerry A. Pressley filed a petition for judicial review of the Lancaster County Council's refusal to issue a Letter of Consistency (LOC). He also filed a petition for a writ of mandamus compelling Lancaster County, through its administrator, to issue the LOC. The trial court affirmed the County Council (Council) and denied Pressley's petition for a writ of mandamus. Pressley appeals. We affirm as modified.

FACTS

Pressley owns and operates an open pit gravel mine in Lancaster County, near the North Carolina-South Carolina border. Pressley applied for a permit to operate a construction and demolition (C & D) landfill on the property. On July 15, 1996, the Lancaster County Zoning Board of Appeals granted Pressley a special exception allowing him to establish the landfill. Pressley purchased additional land as a buffer zone, installed monitoring wells, and purchased landfill equipment.

343 S.C. 701

The Department of Health and Environmental Control (DHEC) requires an applicant for a C & D landfill permit to obtain a LOC from the county prior to reviewing the applicant's request for approval. As a last step in fulfilling DHEC's requirements, Pressley attempted to obtain the LOC from the Lancaster County administrator. The administrator notified Pressley the LOC required Council's approval

Council does not have a written policy, ordinance, or other resolution governing the issuance of LOCs. The Lancaster County Solid Waste Plan does not require the County to provide a separate C & D landfill. The Catawba Regional Plan on Solid Waste Management, which Lancaster County joined in February, 1996, recommends the use of a separate C & D landfill but does not require it.

Pressley presented his request at the May 5, 1997 Council meeting. Council recognized it would have to reconsider a moratorium it previously placed on the issuance of LOCs. The issues of the reconsideration of the moratorium and consideration of Pressley's request were placed on the agenda of the next meeting.

At the May 27, 1997 meeting, Council repealed the moratorium. Council then considered Pressley's request. Pressley stated the landfill would handle approximately 300,000 tons of C & D waste per year. According to the minutes of the May 27 meeting, several members commented that Council's decision should be based upon the need in Lancaster County and the best interests of Lancaster County citizens. Council denied Pressley's request.

Pressley requested a reconsideration, J. Chappel Hurst, Jr., the Lancaster County Administrator, informed Pressley that his request could only be honored if a Council member who voted against the LOC moved to reconsider the issue. Although a member asked that reconsideration of the denial of Pressley's request for a LOC be placed on the agenda of the next meeting, the record on appeal does not indicate the matter was ever reconsidered.¹ At the time of Pressley's request, seven sites were seeking LOCs for C & D landfills.

343 S.C. 702

On June 26, 1998, Pressley filed a complaint seeking judicial review of Council's decision. Pressley also sought a declaratory judgment of the constitutionality of the moratorium and of Council's decision. He subsequently filed a petition for a writ of mandamus compelling Lancaster County to issue the LOC

The trial court found Pressley's constitutional argument, that Council's action violated the Commerce Clause of the United States Constitution, was without merit. It also noted Pressley neither alleged nor proved that The South Carolina Solid Waste Policy and Management Act² was unconstitutional. It held Pressley was not entitled to a writ of mandamus because Pressley failed to prove the ministerial nature of the act of issuing a LOC and the unavailability of any other remedy. The trial court found Pressley had not exhausted his administrative remedies because he had not pursued a final ruling from DHEC. The court dismissed the petition for judicial review and denied the petition for a declaratory judgment, an injunction, and a writ of mandamus.

LAW/ANALYSIS

1. The LOC

Pressley argues Council's denial of his request for the LOC was arbitrary and capricious because Council did not follow its previous unwritten practice or any written criteria. We disagree.

The South Carolina Solid Waste Policy and Management Act requires planning for solid waste disposal at the state and local or regional level. S.C.Code Ann. § 44-96-80(A)(Supp.1999). Lancaster County participated with Chester, Union, and York Counties to develop the Catawba Regional Plan, which DHEC approved. The Act requires a person to obtain a permit from DHEC before operating a solid waste management facility. S.C.Code Ann. § 44-96-290(A) (Supp. 1999).

343 S.C. 703

Permits are issued based on the local need for the requested facility and the consistency of the proposed facility with local zoning and other ordinances. Accordingly, the Act provides:

No permit to construct a new solid waste management facility or to expand an existing solid waste management facility may be issued until a demonstration of need is approved by the department.... In determining if there is a need for new or expanded solid waste disposal sites, the department shall not consider solid waste generated in jurisdictions not subject to the provisions of a county or regional solid waste management plan pursuant to this chapter.

S.C.Code Ann. § 44-96-290(E) (Supp.1999).

The Act further mandates that DHEC cannot issue a permit unless the proposed facility "is consistent with local zoning, land use, and other applicable local ordinances, if any; that, eighteen months after the date of enactment of this chapter, the proposed facility or expansion is consistent with the local or regional solid waste management plan and the state solid waste management plan." S.C.Code Ann. § 44-96-290(G)(Supp.1999).

The Act does not specify how such determinations of need and consistency are to be made. DHEC's practice has been to delegate to the counties the authority to determine consistency through their issuance of the LOCs.³ According to the regulation, DHEC determines the allowable rate of disposal based on the Region/County Solid Waste Management Plans, the LOCs, the facility's design capacity, the expected operational life, and the area to be...