Tippecanoe Sanitary Landfill, Inc. v. Board of County Com'rs of Tippecanoe County, 2-982A324

• Decision Date: 10 November 1983
• Docket Number: No. 2-982A324,2-982A324
• Parties: TIPPECANOE SANITARY LANDFILL, INC., an Indiana Corporation, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF TIPPECANOE COUNTY, Indiana, Appellee.
• Court: Indiana Appellate Court

Page 971

455 N.E.2d 971

TIPPECANOE SANITARY LANDFILL, INC., an Indiana Corporation, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF TIPPECANOE COUNTY, Indiana, Appellee.

No. 2-982A324.

Court of Appeals of Indiana,

First District.

Nov. 10, 1983.

Rehearing Denied Dec. 20, 1983.

Louis Pearlman, Jr., Edward Chosnek, Pearlman & Chosnek, Lafayette, for appellant.

J. Frederick Hoffman, Hoffman, Melichar & Luhman, Lafayette, for appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

In an action for injunctive relief initiated against the appellant, Tippecanoe Sanitary Landfill, Inc. (TSL), by T.R. Ash Company, TSL filed a third-party complaint against the Board of County Commissioners of Tippecanoe County (Board of Commissioners). The Board, in turn, moved for summary judgment. This motion was granted by the Tippecanoe Superior Court on April 29, 1982. It is from this determination that TSL now appeals. ¹ We affirm in part, reverse in part, and remand.

FACTS

Following promulgation of the Refuse Disposal Act of 1965, ² declaring open dumps to be "inimical to human health," Indiana Code section 19-2-1-31 (1974), ³ governmental units were required to dispose of refuse by one of the methods delineated in Indiana Code section 19-2-1-3(a)--(e) (1974). ⁴ The Act also provided governmental units with the authority to contract with private parties for the collection and disposal of refuse, Indiana Code section 19-2-1-4 (1974); ⁵ appropriate land for disposal premises and facilities, Indiana Code section 19-2-1-5 (1974); ⁶ and "make and enter into contracts or agreements necessary or incidental to the performance of its duties and the execution of its powers under this act." Indiana Code section 19-2-1-7 (1974). ⁷

In response to the Act, various open dumps in Tippecanoe County were closed and an agreement was made among the Board of Commissioners, City of Lafayette, City of West Lafayette, and the Trustees of Purdue University providing for the establishment of a single sanitary landfill which would be available to all residents of Tippecanoe County.

As a result of this agreement, TSL was formed in 1971 and since that time has operated the only sanitary landfill in Tippecanoe County. In the year of its formation, TSL contracted with the Board of Commissioners to accept all refuse delivered to its landfill by the various refuse haulers in the county. The contract further provided that TSL would charge a maximum rate of $2.40 per ton of refuse delivered to its site. This amount, however, could be increased periodically in accordance with the Construction Cost Index. ⁸

In 1976, the Board of Commissioners adopted ordinance 76-19. Tippecanoe County, Ind., Ordinance 76-19 (June 14, 1976). This ordinance, in short, provided a comprehensive scheme for regulating and licensing of persons engaged in the collection and disposal of refuse in the county.

Following expiration of the contract between TSL and the Board of Commissioners, ordinance 76-19 was amended by the enactment of ordinance 81-10. Tippecanoe County, Inc., Ordinance 81-10 (June 1, 1981). Through this amendment, maximum rates were established for landfill operators in the county with provisions for periodic increases in accordance with the Construction Cost Index.

Despite the establishment of maximum rates, TSL announced that commencing June 1, 1981, its rates would increase from $5.40 per ton to $8.50. In response to this increase, one of the major refuse haulers in the county, T.R. Ash Company, sought injunctive relief to prohibit TSL from charging the higher rate. TSL responded by filing a third-party complaint against the Board of Commissioners alleging that ordinances 76-19 and 81-10 were void and unconstitutional.

The Board's motion for summary judgment was granted and TSL now appeals.

ISSUES

Six issues are raised by TSL. For purposes of clarity, we restate them as follows:

1. Were ordinances 76-19 and 81-10 properly enacted in accordance with the 2. Did the enactment of the Refuse Disposal Act pre-empt Indiana Code section 17-2-22-4 (1980 Supp.) ¹⁰ as well as ordinances 76-19 and 81-10?

procedure set forth in Indiana Code section 17-2-22-5 (1974)? ⁹

3. Are ordinances 76-19 and 81-10 in excess of the authority granted by Indiana Code section 17-2-22-4 (1980 Supp.)?

4. Does the word "regulate," found in Indiana Code section 17-2-22-4 (1980 Supp.), include the power to establish the maximum rates which may be charged by sanitary landfill operators?

5. Are the standards for establishing maximum rates contained in ordinance 81-10 reasonable?

6. Does the establishment of maximum rates by the Board of Commissioners deprive TSL of its property without due process of law, deny it equal protection, or constitute an abuse of the Board's police powers?

DISCUSSION AND DECISION

At the outset, we note TSL is appealing from the granting of summary judgment to the Board of Commissioners. Consequently, TSL must establish, with regard to the issues it argues, that there is a genuine issue of material fact which made disposition by means of summary judgment inappropriate. Indiana Rules of Procedure, Trial Rule 56(C); Osborne v. State, (1982) Ind.App., 439 N.E.2d 677, 684. In determining whether a genuine issue of material fact was present, the trial court was bound to accept as true all facts alleged by TSL and resolve all doubts against the Board. Osborne, 439 N.E.2d at 684; Moll v. South Central Solar Systems, Inc., (1981) Ind.App., 419 N.E.2d 154, 159; Kendrick Memorial Hospital, Inc. v. Totten, (1980) Ind.App., 408 N.E.2d 130, 134. However, nonmoving parties, such as TSL, may not merely rely upon the allegations in their complaint, but must come forth with sufficient factual allegations to establish the existence of genuine issues. Associates Financial Services Co. of Kentucky, Inc. v. Knapp, (1981) Ind.App., 422 N.E.2d 1261, 1264. Notwithstanding a nonmoving party's failure to make such a showing, a trial court may not grant the motion unless the moving party can establish it is entitled to judgment as a matter of law. Nationwide Mutual Insurance Co. v. Neville, (1982) Ind.App., 434 N.E.2d 585, 589, trans. denied.

Thus, in reviewing the granting of summary judgment, this court engages in a two-step analysis. First, we must be satisfied there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Then, upon such a determination, we must ascertain whether the trial court has properly applied the law. Nahmias v. Trustees of Indiana University, (1983) Ind.App., 444 N.E.2d 1204, 1206, trans. denied.

Our standard of review thus stated, we turn to the specific issues raised by TSL.

Issue One

The first issue raised by TSL concerns the promulgation of ordinances 76-19 and 81-10. According to TSL, these ordinances were enacted in a manner contrary to the procedures delineated in Indiana Code section 17-2-22-5 (1974). That section provided:

"Any ordinance as provided for in sections 2, 3, and 4 [17-2-22-2--17-2-22-4] hereof may be introduced at any meeting of the board of commissioners of any county. A written copy of the proposed draft shall be provided at the time of introduction and the board shall assign to each proposed draft for an ordinance a distinguishing number. Not more than seven days after the introduction of a proposed draft of an ordinance nor less than seven days before the final passage of a proposed ordinance, the board shall publish a notice that the proposed draft for an ordinance is pending final action by the board. Said notice shall be published in two newspapers of general circulation within the county. The board shall include in the notice reference to the subject-matter of the proposed ordinance and the time and place of hearing will be had thereon and shall indicate that the proposed ordinance is available for public inspection at the office of the board. The board shall, not later than the date of notice of the introduction of a proposed ordinance, place five copies of the proposed ordinance on file in the office of the board for public inspection. At a meeting for which notice has been given as required by this section, the board may take final action on the proposed ordinance or may postpone final consideration thereof to a designated meeting in the future without giving additional notice. The board may adopt an ordinance only at a meeting which is open to the public. Before adopting an ordinance, the board shall give opportunity to any person present at the meeting to give testimony, evidence or argument for or against the proposed ordinance, in person or by counsel, under such rules as to the number of persons who may be heard and time limits as may be adopted by the board. When an ordinance is adopted the board shall at the same meeting designate the effective date of the ordinance. If the board fails to designate the effective date of the ordinance in the record of the proceedings of the board, the ordinance shall be effective on the fourteenth day after its passage. When the board adopts an ordinance, the board shall cause copies thereof to be made which shall be available to the public. The board may provide for the printing of such ordinance in pamphlet or book form and may distribute the same without charge or may charge the cost of printing and distribution."

Id. Specifically, TSL alleges the Board adopted the ordinances without a hearing and without notification to its president, Gerald Schlossberg. Further, TSL asserts there is no evidence the Board made a proper distribution of the ordinances upon their enactment. These contentions have no merit.

In its Findings of Fact and Conclusions of Law, the trial court expressly determined: "The Board of County Commissioners of Tippecanoe County Indiana had statutory authority to enact ordinances regulating the disposal of garbage and rubbish, and that ordinance No. 76-19 and ordinance No. 81-10 were duly enacted and...