Stewart v. Rood

Decision Date17 July 1990
Docket NumberNo. 64932,64932
Citation796 P.2d 321,1990 OK 69
Parties21 Envtl. L. Rep. 20,026, 1990 OK 69 E.H. STEWART, Wanda L. Stewart, John Peoples, LaRue Peoples, James Howard and Sharon Howard, Appellants, v. Fenton ROOD, Director, Solid Waste Division of the Oklahoma State Department of Health; the Oklahoma Department of Health; Joan K. Leavitt, Commissioner, State Department of Health; Pottawatomie County Health Department; and the Board of County Commissioners of Pottawatomie County, Appellees.
CourtOklahoma Supreme Court

Paul F. Fernald, Trent W. Keller, Keller & Fernald, Oklahoma City, and John L. Clifton, Shawnee, for appellants.

Robert D. Kellogg, Oklahoma State Dept. of Health, Oklahoma City, for appellees.

LAVENDER, Justice:

We decide in this case: 1) whether prior to recent changes made by the 42nd Oklahoma Legislature, that body intended for the Oklahoma Department of Health (ODH) in making a decision to grant a permit to construct and operate a solid waste landfill pursuant to the Oklahoma Solid Waste Management Act (OSWMA), 63 O.S.1981, § 2251 et seq., as amended 1 to be subject to the strictures of the Oklahoma Administrative Procedures Act (OAPA), 75 O.S.1981, §§ 301 et seq., as amended (now §§ 250-323) concerning individual proceedings and whether landowners adjacent to a proposed site were entitled to judicial review under the OAPA to challenge the granting of a permit; 2) whether landowners adjacent to a site so permitted, as a matter of either statutory and/or constitutional right were entitled to notice and an opportunity for a trial type hearing prior to the granting of a permit; 3) whether 63 Supp.1983, § 2258.2, a part of the OSWMA, violated any due process rights of such landowners under either OKLA. CONST. art. 2, § 7 or U.S. CONST. amend. XIV, § 1 because it only provided for publication notice upon filing an application for a sanitary landfill permit and a "formal public meeting", upon request of any person residing or doing business in Oklahoma, for the expression of written or oral views, rather than a trial like proceeding; and 4) whether the mere granting of a permit constitutes a taking of private property for public use of adjacent landowners without just compensation in violation of either OKLA. CONST. art. 2, § 24 or U.S. CONST. amend. V, as incorporated in amend. XIV. We answer all of these questions in the negative. We note, however, such landowners or others, were not necessarily foreclosed from bringing appropriate remedial actions in the courts of this State against ODH challenging the permit based on the ground(s) ODH did not follow either substantive statutory criteria or its own substantive rules in granting the permit or, from bringing in the future district court actions against the operator or owner of the site based on contentions operation of the landfill somehow injures or immediately threatens injury to a legally recognized interest inuring in them. 2

This case began with the filing of an application by Browning-Ferris, Inc. (BFI) with ODH for a sanitary landfill permit to be located at a site in Pottawatomie County. Pursuant to § 2258.2 notice of the application was published in newspaper(s) local to the proposed site of opportunity to oppose the granting of the permit by requesting a "formal public meeting." Such a meeting was held in Earlsboro, Oklahoma on or about April 9, 1984, and was attended by all or some of the Appellants here, apparently owners of land adjacent to the proposed site. 3 Written and oral views in opposition to the application, as allowed by § 2258.2, were apparently expressed during the meeting, but it was not conducted as a trial-type proceeding nor did ODH consider such to be required by the OSWMA, the OAPA or any other law, statutorily or constitutionally grounded. Six months later, on October 9, 1984, Appellants filed their petition in the district court of Pottawatomie County attempting to restrain issuance of the permit. On the same date ODH, apparently unaware of the pendency of the petition, granted the permit to BFI. The matter was heard by the district court on the issues raised by Appellants' second amended petition which sought to void the permit.

The basis of Appellants' attack is threefold. One, they allege the OSWMA is unconstitutional as a matter of procedural due process because it does not provide adequate notice and opportunity to be heard to those adversely affected by the granting of the permit. In such regard, they claim their property (real estate, residences or businesses) either are or will be adversely affected in numerous ways because of the close proximity of the proposed site. In part, they appear to contend the permit itself allows "BFI the right to depreciate, take, and make unusable [their] property by construction, operation and maintenance of a noxious, unsightly, disease prone and unsafe landfill next to [their] homes". In essence, they seem to be asserting a landfill as a matter of law is a nuisance.

They next assert the procedures of ODH in relation to them were infirm because they did not comply with the dictates of the OAPA in regard to the conducting of individual proceedings and the procedures utilized by ODH in granting the permit were so arbitrary and capricious that the permit is void. In this regard, they argue entitlement, as a matter of statutory or constitutional law, to the protections of the OAPA, with all its procedural safeguards, including an appeal under 75 O.S.1981, § 318 to a state district court to challenge the correctness of the ODH decision, under relevant criteria, to grant the permit. They also apparently assert the permit granting process was arbitrary and capricious because ODH, they claim, granted the permit even though the overwhelming majority of the interested populace opposed the proposed site for the landfill. Finally, they assert the OSWMA is unconstitutional because it allows the taking of their property for public use without just compensation.

The district court bifurcated the matter into two stages. It initially held the OSWMA constitutionally firm in regard to both the procedural due process and taking clause arguments of Appellants. It next decided the procedures utilized by ODH, although possibly not the best that could be envisioned, were not so arbitrary and capricious such that the permit issued thereunder was rendered void. 4 In effect, it decided ODH in the granting of a landfill permit was not required to conform to the requirements for individual proceedings under the OAPA and adjacent landowners had no identifiable property interest subject to due process protection in the permit granting process to a neighboring landowner to utilize his land for a landfill.

The Court of Appeals affirmed the ruling of the trial court, but in doing so it held the granting of such a permit was subject to the OAPA. It appeared influenced in its ruling affirming the district court by the fact no administrative record was procured by Appellants for review and no trial court transcript of any hearing or trial was submitted on appeal. We granted certiorari to determine whether the permitting process was subject to the strictures of the OAPA for individual proceedings, including culmination in an appeal under § 318 of the OAPA, whether adjacent landowners have protectible due process rights in that process and whether the mere granting of such a permit constitutes a taking of private property for which compensation must be paid to adjacent landowners. All of these questions are matters of first impression.


In order to reach a decision in this case we must first determine whether the OAPA itself requires the granting of all agency permits to conform to the adjudicatory mechanisms set forth therein. The OAPA was promulgated by the Legislature in 1963. Although some variations were contained in it the Legislature drew most heavily upon the 1961 Revised Model State Administrative Procedure Act (RMSAPA) in enacting the OAPA. 5 Although we have had occasion many times to interpret the OAPA, we have never expressly decided the question of whether all permits issued by a State administrative agency are governed by the individual proceeding provisions of the OAPA and whether all such decisions are subject to judicial review thereunder or, stated another way, whether the OAPA itself mandates all agency procedures which culminate in the issuance of a permit be subject to what is now Article II of the OAPA concerning individual proceedings. The provisions relating to individual proceedings and judicial review from such proceedings are now known as Article II of the OAPA and are found at 75 O.S.1981,

§§ 309-323. See 75 O.S.Supp.1989, § 250.1(A). 6

We start with the proposition ODH is a State agency subject to the OAPA 7 and it is not one of those State agencies specifically exempted from compliance with Article II of the OAPA. 8 This recognition on our part, however, does not answer the question at hand and we must look to the specific provisions of the OAPA in regard to the granting of permits under the OSWMA to determine legislative intent as to whether OAPA provisions alone mandate compliance with Article II.

75 O.S.1981, § 314(a) of the OAPA provides as follows:

When the grant, denial, or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of [the OAPA] concerning individual proceedings apply. (emphasis added)

A license is defined in the OAPA as, "[T]he whole or part of any permit, certificate, approval, registration, charter, or similar form of permission required by law." 75 O.S.Supp.1989, § 250.3(3). 9 We have little trouble ruling a permit like that involved here issued under the OSWMA falls within the definition of a license under the OAPA. It is a permit...

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