TRI COUNTY LANDFILL v. Brule County, No. 21143

• Citation: 2000 SD 148,619 N.W.2d 663
• Decision Date: 29 November 2000
• Docket Number: No. 21143, No. 21171.
• Parties: TRI COUNTY LANDFILL ASSOCIATION, INC., Plaintiff and Appellee, v. BRULE COUNTY, South Dakota, Defendant and Appellant.
• Court: Supreme Court of South Dakota

619 N.W.2d 663

2000 SD 148

TRI COUNTY LANDFILL ASSOCIATION, INC., Plaintiff and Appellee, v. BRULE COUNTY, South Dakota, Defendant and Appellant.

Nos. 21143, 21171.

Supreme Court of South Dakota.

Argued on April 26, 2000.

Decided November 29, 2000.

Robert Schaub of Larson, Sundall, Larson, Schaub & Fox, Chamberlain, Attorneys for plaintiff and appellee.

Steven M. Johnson, A. Russell Janklow of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, and Sheila S. Woodward, Yankton, Attorneys for defendant and appellant.

AMUNDSON, Justice.

[¶ 1.] Brule County (County) appeals the granting of summary judgment in favor of Tri County Landfill Association (Landfill) on its 42 U.S.C. § 1983 action. Landfill filed a notice of review raising numerous issues. We affirm in part, reverse and remand.

FACTS

[¶ 2.] This is a companion case to a prior decision of this Court. See Tri County Landfill Ass'n v. Brule County, 535 N.W.2d 760 (S.D.1995)

(hereinafter Tri County I).¹ In Tri County I, the issue before this Court was whether Brule County's denial of Landfill's second requested permit to build a landfill was "arbitrary and capricious." In the present case, we are faced with Landfill's § 1983 action against County claiming violation of its constitutional rights by this permit denial.

[¶ 3.] On February 9, 1993, Brule County Commission agreed, pursuant to a resolution passed by County, to sell forty acres of land to Landfill.² On April 27, 1993, County's zoning board granted Landfill a special exception to the local zoning ordinance to construct a solid waste facility on the property. Landfill subsequently filed a landfill permit application with the South Dakota Department of Environment and Natural Resources (DENR) which was tentatively approved on July 29, 1993.

[¶ 4.] On August 26, 1993, Clifford Lantz (Lantz), an adjoining landowner to the proposed landfill and resident of Brule County, filed a contested case petition and request for hearing. Shortly after Lantz filed his petition, several joint entities withdrew as members of Landfill; specifically, City of Mitchell, Davison County, Hutchinson County and Hanson County withdrew their association with Landfill due to concern that the landfill would not open in compliance with the federal deadline and the decision by the City of Mitchell to keep its landfill open.

[¶ 5.] A hearing on the contested case petition was scheduled for October 20, 1993, before the Board of Minerals and Environment (BME), but was continued until January 19, 1994. BME issued its findings of fact and conclusions of law on February 16, 1994, and concluded that Landfill's permit complied with South Dakota's regulations, but Landfill had failed to obtain county approval of the facility within six months prior to BME's approval pursuant to SDCL 34A-6-103.³ BME further concluded that the issuance of Landfill's permit was conditioned on Landfill obtaining county reapproval and compliance with DENR's groundwater monitoring requirements.

[¶ 6.] Prior to the BME hearing, a change in membership occurred on County's Commission and a majority of members now opposed the creation of the landfill. On May 3, 1994, the Brule County Commission held a meeting and denied Landfill's request for reapproval of the landfill site. Landfill appealed this decision to the circuit court which determined that the denial of Landfill's reapproval was "arbitrary and capricious." In Tri County I, on appeal before this Court, we affirmed the circuit court's determination that County's denial of Landfill's permit reapproval was "arbitrary and capricious" and ordered County to reissue permit approval to Landfill. The landfill eventually opened on November 4, 1996.

[¶ 7.] On June 20, 1994, Landfill brought suit against County for damages under 42 U.S.C. § 1983. County thereafter moved to dismiss the action under SDCL 15-6-12 or in the alternative, a motion for summary judgment. Landfill made a motion for partial summary judgment on the issue of liability under 42 U.S.C. § 1983. Both of County's motions were denied. The trial court, however, granted Landfill's motion based upon this Court's prior determination in Tri County I that County's denial of Landfill's permit reapproval was "arbitrary and capricious." Thereafter, the case continued solely on the damages issue. The trial court awarded Landfill $628,428.03 in damages, prejudgment interest, attorney's fees and costs.

[¶ 8.] County appeals, raising the following issues:

1. Whether Landfill established a violation of constitutional rights entitling it to summary judgment on liability under 42 U.S.C. § 1983.

2. Whether the trial court erred in awarding Landfill $193,517.04 in damages plus prejudgment interest.

3. Whether the trial court erred in awarding Landfill $359,457.96 in attorney fees.

4. Whether the trial court erred in granting Landfill costs associated with prior litigation.

5. Whether the trial court erred in denying County's motion for jury trial and motion to amend its answer to add a counterclaim for tipping fees not paid by Landfill.

Landfill filed a notice of review, raising the following additional issues:

6. Is SDCL 34A-6-103 unconstitutional.

7. Whether the trial court erred in failing to take judicial notice of the 1995 trial transcript and exhibits.

8. Whether the trial court erred in allowing a challenge to the attorney fees and costs.

9. Whether County's commissioners acted in an administrative capacity when they refused to reapprove the landfill.

10. Whether the trial court erred in not awarding Landfill additional damages for pre-opening administrative costs which were incurred after County had refused to reapprove the landfill.

11. Whether the trial court erred in declaring numerous exhibits irrelevant.

STANDARD OF REVIEW

[¶ 9.] This case involves the granting of a summary judgment motion against County on the liability aspect of Landfill's § 1983 claim. We have often stated that "[s]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.'" Horne v. Crozier, 1997 SD 65, ¶ 5, 565 N.W.2d 50, 52 (citing SDCL 15-6-56(c); Ford v. Moore, 1996 SD 112, ¶ 7, 552 N.W.2d 850, 852). Further, "[i]f no issues of material fact exist, and legal questions have been correctly decided, we will affirm." Id. (citing City of Lennox v. Mitek Indus., Inc., 519 N.W.2d 330, 332 (S.D.1994); Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)).

DECISION

[¶ 10.] 1. Whether Landfill established a violation of constitutional rights entitling it to summary judgment on liability under 42 U.S.C. § 1983.

[¶ 11.] Under a 42 U.S.C. § 1983 cause of action, a party may recover damages for the "`deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States caused by any person acting `under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.'" See Michigan Envtl. Resources Assocs., Inc. v. County of Macomb, 669 F.Supp. 158, 159 (E.D.Mich.1987)

(quotation omitted). In a § 1983 action, plaintiff must prove two elements. Id. First, a plaintiff must prove "that the defendant acted under color of state law." Id. Second, the plaintiff must prove that "the defendant deprived the plaintiff of a federal right, either statutory or constitutional." Id. (citing Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). The parties do not dispute that County's conduct was under "color of state law"; therefore, the first element of a § 1983 cause of action is clearly satisfied. As such, the crux of our review focuses on whether Landfill was deprived of any "statutory or constitutional right."

[¶ 12.] Landfill originally alleged in its complaint in this case that "revocation by [County] was without prior notice to the [Landfill] and was arbitrary, capricious, willful, malicious, and an unconstitutional taking without just compensation, due process and denied the [Landfill] equal protection under both the South Dakota and United States Constitutions and is actionable under [42] U.S.C. 1983 and 1985." The trial court granted summary judgment solely on the grounds that County violated Landfill's due process rights.⁴

Due Process

[¶ 13.] There are two types of due process which are protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See Macomb, 669 F.Supp. at 159-60. The first type is procedural due process which provides"`certain substantial rights—life, liberty and property—cannot be deprived except pursuant to constitutionally adequate procedures.'" Id. (quoting Loudermill v. Cleveland Bd. of Educ., 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494, 503 (1985)). Procedural due process "is flexible and requires only such procedural protections as the particular situation demands." See Knowles v. United States, 1996 SD 10, ¶ 79, 544 N.W.2d 183, 201

(citing Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 33 (1976); Flockhart v. Wyant, 467 N.W.2d 473, 476 (S.D.1991)).

[¶ 14.] The second type of due process is substantive due process which provides that "`certain types of governmental acts [violate] the Due Process Clause regardless of the procedures used to implement them.'" Id. at 159-60 (quoting Nishiyama v. Dickson County Tennessee, 814 F.2d 277, 281 (6th Cir.1987)). It is well settled that the doctrine of substantive due process,

"does not protect individuals from all [governmental] actions that infringe liberty or injure property in violation of some law. Rather, substantive due process prevents `governmental power from being used for purposes of oppression,' or `abuse of government power that shocks the conscience,' or `action that is legally irrational in that it is not

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