RISE, Inc. v. Kay, Civ. A. No. 3:90CV00680.

• Decision Date: 21 June 1991
• Docket Number: Civ. A. No. 3:90CV00680.
• Citation: 768 F. Supp. 1141
• Court: U.S. District Court — Eastern District of Virginia
• Parties: R.I.S.E., INC., et al., Plaintiffs, v. Robert A. KAY, Jr., et al., Defendants.

768 F. Supp. 1141

R.I.S.E., INC., et al., Plaintiffs, v. Robert A. KAY, Jr., et al., Defendants.

Civ. A. No. 3:90CV00680.

United States District Court, E.D. Virginia, Richmond Division.

June 21, 1991.

Sa'ad El-Amin, Richmond, Va., for plaintiffs.

John Granville Douglass, Jonathan Steven Geldzahler, Wright, Robinson, McCammon, Osthimer & Tatum, Richmond, Va., for defendants Robert A. Kay, Jr., Robert H. Bourne, Jr., Raymond F. Alsop, Wilbur L. Hickman, and James R. Walton.

Dennis Patrick Lacy, Jr., William Jeffrey Dinkin, Clayton Lewis Walton, Timothy George Hayes, Samuel Miles Dumville, Hazel, Thomas, Fiske, Beckhorn & Hanes, Richmond, Va., for defendant Browning-Ferris Industries of South Atlantic.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter is before the Court on the defendants' motion for summary judgment, pursuant to Fed.R.Civ.Proc. 56(b). The motion for summary judgment on Count One, which alleges a violation of the Equal Protection Clause of the Fourteenth Amendment, is DENIED for the reasons discussed below. The motion for summary judgment on the remaining counts is GRANTED.

Factual Background

The plaintiff, a bi-racial community organization formed for the purpose of halting the development of a regional landfill in King and Queen County, filed an equal protection lawsuit against the County Board of Supervisors on December 26, 1990. R.I.S.E. challenges the Board's acquisition of a purchase option on a 420 acre site for the development of a regional landfill in an area populated primarily by African Americans and charges the Board with maintaining a pattern and practice of racial discrimination in landfill location and zoning.

On December 11, 1989, the County entered into an agreement with Chesapeake Corporation to acquire for $21,000 an exclusive two-year option to purchase 420 acres for the sum of $420,000. The land had been recommended in November of 1989 by a two member committee of the Board as a potential landfill site. The County acquired the purchase option after a public hearing and Board executive session approving the acquisition in early December of 1989. At the time of its acquisition, the 420 acre site was zoned for agricultural and low density rural uses (an "A/LDR district"). On July 2, 1990 the Board approved a recommendation to rezone the 420 acre site for industrial use. Article XII, Section 12-1 of the County's Zoning Ordinance states that "I" districts are intended to provide locations for light industrial and manufacturing uses, and related service and support uses, "which involve minimal hazards and do not create significant amounts of smoke, noise, odor, dust or other public nuisance ..." Section 12-1 further provides that an "I" District "is intended to be located on primary highways to facilitate needed access to uses and to avoid industrial traffic impacts on minor and secondary roads."

The Board began to solicit proposals for landfill operation in mid-February. The Board had by this time enlarged the scope of the operation from a county to a regional landfill. At an August, 1990 meeting, the Board approved a resolution to enter a lease agreement with BFI to operate the proposed landfill. The BFI proposal was one of two proposals received by the Board. On or about August 27, 1990, the Board executed a lease agreement between the Board and BFI to operate a regional landfill on the 420 acre site to handle collection and disposal of solid waste generated throughout the eastern Virginia region.

The proposed landfill will be located in a predominantly black area near the intersection of state routes 609 and 614. All three of the already operating county-run landfills are similarly located in predominantly black areas. The landfill near SR 640 is in the immediate proximity of the First Mt. Olive Baptist Church, a large African American church. Second Mt. Olive Baptist Church, one of the oldest African American churches, is located at the intersection of state routes 614 and 609, near the site of the proposed landfill. Plaintiffs allege that both Route 614 and Route 609 are "minor and secondary roads" inadequate for landfill access purposes absent substantial improvement.

Argument

Genuine issues of material fact concerning discriminatory intent preclude summary judgment in this case. In Village of Arlington Heights v. Metropolitan Housing Development Housing Development Corporation, 429 U.S. 252, 266-68, 97 S.Ct. 555, 563-65, 50 L.Ed.2d 450 (1977), the Supreme Court listed six factors to consider in determining whether an action is intentionally discriminatory: 1) the effect of the official action, 2) the historical background of the decision, 3) the specific sequence of events leading up to the challenged decision, 4) departures from normal procedures, 5) departures from normal substantive criteria, and 6) the administrative history of the decision.

The plaintiff offers evidence that suggests the possibility of a pattern of disparate treatment of whites and blacks with respect to the placement of landfills during the past 25 years. Specifically, the three county-run landfills in operation, as well as the proposed landfill that is the subject of this suit, are located in predominantly black neighborhoods. The Supreme Court's decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) made it clear that official action will not be held unconstitutional solely...