Triple G Landfills v. Board of Com'rs, IP-90-093-C.

• Decision Date: 30 September 1991
• Docket Number: No. IP-90-093-C.,IP-90-093-C.
• Citation: 774 F. Supp. 528
• Parties: TRIPLE G LANDFILLS, INC., Plaintiff, v. BOARD OF COMMISSIONERS OF FOUNTAIN COUNTY, and Janet Shoaf, David Ziegler, and Richard Klage, in their capacities as members of the Board of Commissioners, Defendants.
• Court: U.S. District Court — Southern District of Indiana

774 F. Supp. 528

TRIPLE G LANDFILLS, INC., Plaintiff, v. BOARD OF COMMISSIONERS OF FOUNTAIN COUNTY, and Janet Shoaf, David Ziegler, and Richard Klage, in their capacities as members of the Board of Commissioners, Defendants.

No. IP-90-093-C.

United States District Court, S.D. Indiana, Indianapolis Division.

September 30, 1991.

George M. Plews, Gwendolyn J. McCarty, Donn H. Wray, Plews & Shadley, George W. Pendygraft, Indianapolis, Ind., for plaintiff.

Robert R. Clark, Richard S. Pitts, Lowe, Gray, Steele & Hoffman, Indianapolis, Ind., for defendants.

ENTRY

DILLIN, District Judge.

This matter comes before the Court on the plaintiff's motion for partial summary judgment and on the defendants' cross-motion for summary judgment. For the reasons set forth below, the Court grants the plaintiff's motion and denies the defendants' cross-motion.

Background

The facts relevant to the resolution of the motions before the Court are not in dispute. The plaintiff, Triple G Landfills, Inc. (Triple G), is an Indiana corporation with its principal place of business in Indiana. In July, 1989, Triple G purchased an option to buy a 189-acre tract in Mill Creek Township in Fountain County, Indiana, for possible development as a sanitary landfill site for waste from west central and northwest Indiana, from the Chicago area and from other nearby areas of contiguous states. Shortly after purchasing the option, Triple G spent approximately $175,000.00 on geologic and environmental analyses of whether the tract would be suitable for such use. The results indicate that the tract is suitable for development as a landfill.

On July 31, 1989, the Board of Commissioners of Fountain County (the Commissioners), the local governmental body with legislative and executive control of the county in which Triple G's tract is located, convened a special meeting to discuss Triple G's possible construction of a landfill in Mill Creek Township. Members of the public in attendance at the meeting expressed concern about Triple G's plans.

As a result of that concern, the Commissioners took action to block Triple G. On August 2, 1989, they adopted Ordinance 5-1989, which imposed a nine-month moratorium on landfill construction and expansion in Fountain County. On January 2, 1990, the Commissioners adopted Ordinance 7-1989, the "Fountain County Waste Management Control Ordinance." Finally, the Commissioners adopted the ordinance challenged in the present case, Ordinance 1-1990 (the challenged Ordinance or the Ordinance), which amended and supplanted Ordinance 7-1989 and is still in effect.

The challenged Ordinance establishes a second permit application procedure at the county level that prospective landfill operators must initiate after seeking and receiving approval at the state level from the Indiana Department of Environmental Management (IDEM), the state agency charged with determining proposed sites' suitability and safety for landfill use.¹ Among its declared purposes is the protection of the health, safety and well-being of the citizens of Fountain County.

The Ordinance sets forth "standards" and "considerations" for the siting, design and operation of sanitary landfills. Most extensive are the "siting standards," which provide:

New sanitary landfill facilities and the expansion of existing sanitary landfill facilities are prohibited from the following areas:

1. Within a 100 year flood plain;

2. Within the critical habitat or migratory habitat of an endangered or threatened species ...;

3. Within wetlands and areas subject to § 404 of the Clean Water Act, as amended;

4. Within two miles of a fault which has had displacement in holocene time....;

5. Within salt dome formations, salt bed formations, underground mines and caves;

6. Within 3,000 feet of a potable water well in use as a water supply for a dwelling or dwellings or agricultural purposes. ...;

7. Within 3,000 feet of any dwelling, farm building, church or public building ...;

8. Within 3,000 feet of the normal water line of any lake, reservoir or continuously or intermittently flowing stream;

9. Within 4,500 feet of any public water supply....

10. Within 4,500 feet of any public or private school.

Fountain County, Indiana, Ordinance 1-1990, § 7(a) (Attachment E to Plaintiff's Brief in Support of Motion for Summary Judgment). The Ordinance also lists various "siting considerations," such as the economic impact of the proposed landfill and the public support or lack of support for it, which the Commissioners may take into account in determining whether to issue a permit.

According to Triple G's undisputed evidence, siting standards seven and eight alone bar landfills from all but five irregularly shaped areas in Fountain County ranging in size from eight to fifty-two acres and totalling 145 acres. There is no overlap between Triple G's tract and any of the five areas. Furthermore, Triple G has introduced undisputed evidence that because of other requirements in the Ordinance and because of the practicalities of landfill construction, it would not be economically feasible to develop any of the five areas as landfills.

Triple G filed this action to challenge the Ordinance. It seeks a declaratory judgment that the Ordinance is invalid and unenforceable, for any of four reasons: that the Ordinance is preempted by state law, found at Ind.Code § 36-1-3-8(7); that it is a "zoning" ordinance adopted in the absence of the preexisting comprehensive county zoning plan required by state law at Ind.Code § 36-7-4-601(a); that because it effectively excludes all landfill development from Fountain County and because it employs local sentiment as a criterion for permit issuance it is "arbitrary, capricious, and without rational basis," in violation of the Due Process Clause of the United States Constitution, U.S. Const. amend. XIV; and, finally, that it bans interstate commerce in waste, in violation of the Commerce Clause, U.S. Constitution art. I, § 8. In the alternative, should the Court find the Ordinance valid, Triple G seeks damages under either a permanent or a temporary taking theory based on both federal and state constitutional law.

Discussion

The Court may appropriately enter summary judgment when "there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202, 211 (1986). In this case, the material facts are not in dispute and the Court need only determine which party is entitled to judgment as a matter of law.

The Court has federal question jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343 over Triple G's federal claims, and pendent jurisdiction over its state claims. Since the federal courts pursue a policy of not reaching federal constitutional issues when a case can be decided on other grounds, even when this means disposing of a case on pendent state-law grounds without ever reaching any federal-law issues, Hagans v. Lavine, 415 U.S. 528, 545-47, 94 S.Ct. 1372, 1383-84, 39 L.Ed.2d 577, 592-94 (1974), the Court begins by addressing Triple G's statelaw claims.

The first of these is the claim that the Ordinance is preempted by state law. The Indiana Code provides:

Powers specifically prohibited. — A unit of local government does not have ...

(7) The power to regulate conduct that is regulated by a state agency, except as expressly granted by statute.

Ind.Code § 36-1-3-8(7). Triple G points out that IDEM does regulate the siting of landfills. Indeed, IDEM is required by statute to promulgate a state solid waste management plan, which must provide "the establishment of general criteria for the siting, construction, operation, closing, and monitoring of final disposal facilities." Ind.Code § 13-9.5-3-3.

All the subjects covered by the Ordinance are also covered by IDEM regulations, but many of IDEM's requirements differ from the Ordinance's. Thus, the Ordinance employs many of the same siting criteria as the IDEM regulations, but makes them more restrictive. For example, while the state merely prohibits landfill construction within the critical habitat of an endangered species, 329 Ind.Admin.Code § 2-10-1(1)(B), Fountain County prohibits landfill construction within the critical or migratory habitat of an endangered or threatened species. Ordinance § 7(a)(2). Similarly, whereas several of IDEM's distance requirements may be waived, the corresponding requirements in the Ordinance are both greater and nonwaivable. Compare, e.g., 329 Ind.Admin.Code § 2-10-1(1)(G) (prohibiting landfill construction within 600 feet of any dwelling unless owner and occupant of dwelling consent) with Ordinance § 7(a)(7) (prohibiting landfill construction within 3000 feet of any dwelling, farm building, church or public building, without exception).

The Ordinance also places additional restrictions not found in IDEM's regulations. For example, the Ordinance prohibits landfill construction within 4500 feet of any public or private school, Ordinance § 7(a)(10), a restriction that has no counterpart in the state regulations. Similarly, Section 7(c)(1) of the Ordinance incorporates by reference IDEM's design standards for leachate collection systems, but, unlike the IDEM regulations, the Ordinance does not permit any alternatives to those standards. Moreover, the Ordinance's design standards add a requirement that has no counterpart in IDEM's regulations: At closure, landfills in Fountain County may not be higher than ten feet above ground level. Ordinance § 7(c)(2). Next, the Ordinance's operating standards incorporate by reference IDEM's operating standards, while adding two requirements not found in the IDEM regulations. Id. § 7(d). The comparisons go on and on.

The Commissioners argue that Fountain County has the authority to adopt such regulations, which they insist are supplementary rather than conflicting, because this...