Bfi Waste System of North Am. v. Dekalb County, Ga

303 F.Supp.2d 1335

BFI WASTE SYSTEMS OF NORTH AMERICA, Plaintiff, v. DEKALB COUNTY, GEORGIA, a political subdivision of the State of Georgia; the DeKalb County Board of Commissioners; Vernon Jones, DeKalb County Chief Executive Officer; and Elaine C. Boyer, Gale Walldorff, Jacqueline Scott, Henry Johnson, Judy Yates, Burrell Ellis, and Lou Walker in their individual capacities as Members of the DeKalb County Board of Commissioners, Defendants.

No. 1:02-CV-0922-RWS.

United States District Court, N.D. Georgia, Atlanta Division.

January 16, 2004.

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George Douglas Dillard, Andrea Cantrell Jones, Dillard & Galloway, Atlanta, GA, for Plaintiff.

Charles George Hicks, William J. Linkous, III, Howard Walter Indermark, E. Charles Reed, Jr., Office of DeKalb County Attorney, Decatur, GA, for Defendant.

ORDER

STORY, District Judge.

Plaintiff BFI Waste Systems of North America ("BFI") filed this case alleging that Defendants, DeKalb County ("the County"), the County CEO, and the County Commissioners, violated federal and state law in connection with their zoning decisions. BFI originally filed this suit in the Superior Court of DeKalb County, Georgia. Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1441(b) and 1446. With the exception of two claims discussed infra Part III.A.1., this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Now before the Court for consideration are Defendants' Motion for Summary Judgment [26-1] and Motion to Strike the Written Report of Plaintiff's Engineer [38-1]. After considering the entire record, the Court enters the following Order.

Factual Background

The following facts are undisputed unless otherwise noted. BFI is a nationwide business that develops and operates landfills and solid waste disposal facilities throughout the United States. BFI owns more than 148 acres of real property in the southern portion of DeKalb County, Georgia; it opened the Hickory Ridge landfill there in 1992.¹ BFI anticipated that the life span of the landfill would be about twelve years, until approximately 2004. Hickory Ridge was designed in conformance with federal and state regulations as they existed in 1992, and was optimized so that the site met all applicable rules.²

At the time of the initial construction of Hickory Ridge, the property was zoned to the "M" classification under the DeKalb County Code. At that time, landfills were a permitted use under the "M" classification. In April 1999, DeKalb County adopted a new Zoning Ordinance. The new Ordinance included "M" and "— 2" classifications; landfills were not listed as permitted uses in either classification. DeKalb County, Ga., Code of Ordinances §§ 27-618("M"), -638 (" — 2"). Instead, landfills were allowed to operate as special uses on land classified as "— 2," only if the owners obtained Special Land Use Permits ("SLUPs"). Id. § 27-640. Because Hickory Ridge existed prior to 1999, it was permitted to continue to operate as a nonconforming use. Id. §§ 27-5, -937.

BFI decided to modify its current design to allow a vertical expansion of the Hickory Ridge landfill, which would extend the life of the landfill for as many as eight years. According to BFI's expert, Frank S. Gray, such an expansion would have yielded approximately $473 million in additional gross revenue. (Pl.'s Ex. H (Gray Report, Executive Summary).) In order to obtain permission from the State for the vertical expansion, BFI needed a letter from DeKalb County stating that the property complied with local zoning ordinances.³ To come into compliance, BFI submitted applications to DeKalb County to rezone the property from the "M" classification to the "— 2" classification and to obtain a SLUP, in September 2001.

On February 26, 2002, Defendants held a public hearing concerning BFI's applications. The Planning Department had recommended approval of BFI's rezoning application, with some conditions, based on the location of the landfill and the surrounding land use. (Maxey Dep. at 36; Tr. at 22.)⁴ At the hearing, however, several residents living near Hickory Ridge complained of offensive odors at their homes. (Tr. at 7, 14.) Many members of the public spoke in opposition to the expansion, citing quality of life, health, property value, and environmental justice concerns. The Commissioners also heard testimony on the potential negative impacts of landfills, read aloud a letter from then-Congressperson Cynthia McKinney who expressed concerns about environmental justice, and considered research on landfills' environmental impacts. (See, e.g., Tr. at 38-48 (testimony), 65-65 (letter), 68-70 (research).) The Commission voted to deny the rezoning application and thereafter denied the SLUP request. (Tr. at 93, 103.)

Based on the proceedings of the hearing, Defendants explain that the Commission denied BFI's application in part to provide protection to Georgia's ground water. (Tr. at 85.) BFI contends, however, that the Board relied on faulty, outdated, and irrelevant information and orchestrated a case against the application at the public hearing. (BFI's Resp. to Defs.' Statement of Undisputed Facts ¶ 26 [hereinafter BFI's Resp. to Facts].) BFI states that Defendants had no credible evidence before them to conclude that the Hickory Ridge landfill posed any threat to ground water. (Id. ¶ 27) In contrast, BFI has presented evidence to show that the County's own landfill, Seminole Road, has exceeded acceptable methane concentrations in its monitoring wells on several occasions. (Scott Dep. at 15-16.)⁵ BFI also notes that the Georgia Environmental Protection Division ("EPD") has responded to odor complaints attributed to Hickory Ridge, but upon investigation, has not found that the offensive odors have come from Hickory Ridge. (Pl.'s F (Arcadis Benefits Evaluation Study at 7-8).) Finally, BFI contends that public statements made at the meeting indicated Defendants' intent to eliminate private landfills through the local government's regulatory powers and monopolize the solid waste market in the DeKalb County region. (See Tr. at 93 (Ms. Yates: "[P]rivate ownership creates problems .... There is nothing wrong with government ownership of landfills.").)

Although its applications were denied, Hickory Ridge continues to operate as a municipal solid waste landfill; DeKalb County has not imposed any restrictions on the tonnage coming into the landfill. (Kauffman Dep. at 71.) Nevertheless, as a result of being unable to expand, BFI has chosen to reduce the volume going into the landfill to try to lengthen its life. (Id.) The parties agree that all landfills eventually reach capacity. When the Hickory Ridge landfill closes, BFI plans to take its waste to another landfill in Georgia, in either Buford or Taylor County. BFI contends that having to take the waste to its other landfills will require price increases which will put its contracts at risk. (Id. at 57.) Further, BFI submits that it can no longer compete in the DeKalb County waste disposal market and it anticipates losing customers as a result of increased transportation costs. (Id. at 57.) Even so, the parties agree that DeKalb's denial of BFI's application has not caused BFI to lose any of its existing contracts or customers.

DeKalb County has no authority over any contracts BFI has with other counties, nor has the County indicated it wants to cancel any of BFI's currently existing contracts. (Id. at 72.) DeKalb County uses its Seminole Road landfill solely for DeKalb County municipal solid waste and does not accept waste from any other source. In contrast, less than ten percent of the waste taken into the Hickory Ridge landfill comes from within the physical boundaries of DeKalb County. Defendants' Solid Waste Management Plan calls for no new permits to be granted for land-filling of municipal solid waste during a ten-year period or until a need arises. (Michael Dep. Ex. 2 at IX-9.) BFI contends that by enacting the Zoning Ordinance and denying BFI's application, the County took "initial steps which will enable the County to take BFI's business in the future." (Pl.'s Resp. to Facts ¶ 35.)⁶

Since the County enacted its Zoning Ordinance in 1999, no waste company other than BFI has applied for a rezoning of its landfill site from "M" to "M-2." Nor has any landfill site been rezoned from "M" to "M-2" since that time. Prior to 1999, however, Waste Management applied for and obtained a vertical expansion permit for Live Oak landfill. Defendants explain that because Waste Management's application was made prior to the 1999 Zoning Ordinance, Waste Management was in compliance with then-current zoning laws and did not need to request a rezoning.⁷ According to Defendants, had BFI also sought a vertical expansion from the State prior to April 1999, there would have been no need to seek a rezoning from DeKalb County because the Hickory Ridge landfill would have been in compliance with then-current zoning laws. (Kaufmann Dep. at 45-47.)⁸ BFI, however, points to a letter from Raymond R. White, Planning Director of DeKalb County, to James Dunbar, Program Manager of the EPD's Solid Waste Management Program dated February 2, 1999 ("the February 2 letter"), certifying that Waste Management's landfill "is a legal nonconforming use (under DeKalb County's zoning and land use ordinances) as it exists today." (Pl.'s Ex. B.) BFI emphasizes that although EPD rules require a reaffirmation of the verification of zoning, DeKalb County never issued such a reaffirmation. On August 3, 1999, the EPD issued a permit to Waste Management for the vertical expansion of its landfill. (Pl.'s Ex. C.)

BFI makes the following claims: (1) violation of the takings prohibitions in the Fifth Amendment to the U.S. Constitution and Article I, Section 3, Paragraph 1 of the Georgia Constitution and the remedy of inverse condemnation for which compensation...