Citizens for a Clean SW Alabama Ruling

7/29/2019 Citizens for a Clean SW Alabama Ruling

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AlaFileE-Notice

To: LUDDERDAVIDALAN

[email protected]

21-CV-2011-900039.00

Judge:HON.BURTSMITHART

NOTICEOFELECTRONICFILING

INTHECIRCUITCOURTOFCONECUHCOUNTY,ALABAMA

ThefollowingmatterwasFILEDon8/6/20131:54:59PM

CITIZENSFORACLEANSOUTHWESTALABAMAETALV.CONECUHCOUNTYCOMMISS

21-CV-2011-900039.00

NoticeDate: 8/6/20131:54:59PM

DAVIDJACKSON

CIRCUITCOURTCLERK

CONECUHCOUNTY,ALABAMA

EVERGREEN,AL36401

[email protected]

COURTHOUSESQUARE


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IN THE CIRCUIT COURT OF CONECUH COUNTY, ALABAMA

CITIZENS FOR A CLEAN SOUTHWEST

ALABAMA,

)

BATTLE PAUL, )

HOWINGTON JAMES A. "BUDDY", )

HOWINGTON CONNIE ET AL, )

Plaintiffs, )

)

V. ) Case No.: CV-2011-900039.00

)

CONECUH COUNTY COMMISSION C/O

WENDELL BYRD, CHAIRM,

)

WENDELL BYRD, CONECUH COUNTY

COMMISSIONER,

)

BYRD WENDELL, )

HUGH BARROW, CONECUH COUNTY

COMMISSIONER ET AL,

)

Defendants. )

ORDER AND FINAL JUDGMENT

This matter comes before the Court on Plaintiffs Motion to Supplement Administrative

Record (filed April 4, 2013); Conecuh Woods, LLCs Motion to Dismiss Plaintiffs Second Amended

Complaint (filed Nov. 8, 2012) and Plaintiffs response thereto; and Plaintiffs Motion for Summary

Judgment (filed April 4, 2013) and Defendant Conecuh Woods, LLCs opposition thereto.

On May 25, 2011, Plaintiffs Citizens for a Clean Southwest Alabama (CCSA), Paul Battle,

George M. Jervey, James Buddy Howington, and William Donald Smith filed a verified complaint

against the Conecuh County Commission; Wendell Byrd, Hugh Barrow, Jerold Dean, Leonard

ELECTRONICALLY FILED8/6/2013 1:54 PM

21-CV-2011-900039.00CIRCUIT COURT OF

CONECUH COUNTY, ALABAMDAVID JACKSON, CLERK


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Millender, and D. K. Bodiford, in their official capacities as County commissioners and in their

individual capacities; and Conecuh Woods, LLC. Amended and verified complaints were

subsequently filed on November 29, 2011 and August 1, 2012. Plaintiffs Second Amended

Complaint alleges six counts relating to the Commissions approval of theApplication for Approval

of Proposed Conecuh Woods Solid Waste Management Facil ity, the execution of theMunicipal Solid

Waste Landfill Development and Host Fee Agreementby the chairman of the Conecuh County

Commission, and a gathering of the commissioners that was not publicly noticed.

I. Plaintiffs

Motion to Supplement Administrative Record

Plaintiffs Motion to Supplement Administrative Record seeks to add the following six

documents to the administrative record of the proceedings of the Conecuh County Commission related

to the approval of theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facility:

CCSABates Number

Exhibit A. Agenda - Conecuh County Commission Meeting (April 11, 2011).....................4528-4529

Exhibit B. Conecuh County Commission Meeting Minutes (April 11, 2011).......................4530-4533

Exhibit C. Conecuh County Commission Working Meeting Minutes

(April 11, 2011).......................................................................................................................4535-4536

Exhibit D. Conecuh County Commission Meeting Agenda (April 18, 2011)................................4911

Exhibit E. Conecuh County Commission Meeting Minutes (April 18, 2011)................................4912

Exhibit F. Conecuh County Commission Meeting Transcript (April 18, 2011)....................4913-4919


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No parties expressed opposition to the motion. Accordingly, the motion is due to be granted.

II. Conecuh Woods, LLCs Motion to Dismiss

Conecuh Woods, LLC asserts that the claims in Plaintiffs Second Amended Complaint

should be dismissed under Ala. R. Civ. P. 12(b)(1) based on lack of standing, lack of ripeness, and

failure to exhaust administrative remedies. Conecuh Woods, LLC also asserts that certain claims in

Plaintiffs Second Amended Complaint should be dismissed under Ala. R. Civ. P. 12(b)(6) for failure

to state a claim upon which relief can be granted.

On review of a motion to dismiss for lack of subject matter jurisdiction under Ala. Civ. P. 12

(b)(1), the Court must accept the factual allegations of the complaint as true. Moreover, the Court

will not consider whether the pleader will ultimately prevail but whether the pleader may possibly

prevail. Gulf Beach Hotel, Inc. v. Gulf State Park Auth., 58 So. 3d 727, 730 (Ala. 2010). The

appropriate standard of review under [Ala. R. Civ. P.] Rule 12(b)(6) is whether, when the allegations

of the complaint are viewed most strongly in the pleaders favor, it appears that the pleader could

prove any set of circumstances that would entitle her to relief. . . . In making this determination, this

Court does not consider whether the plaintiff will ultimately prevail, but only whether she may

possibly prevail. [A] Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the

plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.

Uti ls. Bd. of the City of Opp v. Shuler Bros., Inc., [Ms. 1111558, June 21, 2013] ___ So.3d ___ (Ala.

2013) (per curiam) (quotingNance v. Matthews, 622 So.2d 297, 299 (Ala. 1993)) (citations and

quotation marks omitted). Motions to dismiss should be sparingly granted. DRC, Inc. v. Great Am.


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Ins. Co., 901 So.2d 710, 713 (Ala. 2004).

A. Standing

Conecuh Woods, LLC makes a facial challenge to the legal sufficiency of the allegations in

Plaintiffs Second Amended Complaint regarding standing. See Ex parte Safeway Ins. Co. of Ala.,

Inc., 990 So.2d 344, 349 (Ala. 2008) (distinguishing facial and factual challenges to jurisdictional

allegations). If a defendant mounts a facial challenge to the legal sufficiency of the plaintiffs

jurisdictional allegations, the court must accept as true the factual allegations in the complaint and

consider those allegations in the light most favorable to the non-moving party. Id. Conecuh Woods,

LLC argues that Plaintiffs lack standing to maintain this actionbecause they have alleged no

concrete, actual, or imminent injury. This assertion is based on Conecuh Woods, LLCs argument

that Plaintiffs will suffer no concrete injury until after construction of the landfill commences,i.e.,

sometime after May 31, 2014 when the moratorium established by Ala. Act 2012-434 (signed May

15, 2012) expires and the Alabama Department of Environmental Management (ADEM

) can issue a

permit to construct and operate the landfill.

Ordinarily, a plaintiff must show an actual or imminent concrete and particularized injury in

fact - an invasion of a legally protected interest. Ex parte King, 50 So.3d 1056, 1059 (Ala. 2010)

(citingLujan v. Defenders of Wi ldl if e, 504 U.S. 555 (1992)); Ala. Alcoholic Beverage Control Bd. v.

Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala. 2003) (citingLujan v. Defenders of Wildli fe).

However, a plaintiff has standing to enforce procedural rights, so long as the procedures in question

are designed to protect some threatened concrete interest of his that is the ultimate basis of his


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standing. Lujan v. Defenders of Wi ldl if e, 504 U.S. at 573 n. 8. Accord, Sierra Club v. Johnson, 436

F.3d 1269, 1276-77 (11th Cir. 2006). The [Lujan] Court indicated that these procedural

requirements are enforceable because disregarding them could impair a plaintiffs non-procedural,

concrete interest. Id.

Plaintiffs Second Amended Complaint alleges that CCSA is a nonprofit corporation the

purpose of which is to foster, develop, and promote an organization on behalf of the citizens of

southwest Alabama that will ensure and protect the environment and natural resources from any

harmful, destructive manmade facility, including landfills, located or proposed to be located in

Southwest Alabama; that members of CCSA live and own property in Conecuh County and use,

enjoy, and desire to preserve and protect the environment and natural resources of Conecuh County,

including floodplains and adjacent lands, endangered and threatened species and their habitats,

archeological and historical resources, surface waters, ground waters, wetlands, and air quality; that

the design, location, and size of the proposed Conecuh Woods landfill may restrict the flow of the

100-year flood, reduce the temporary water storage capacity of the floodplain, and result in washout

of solid waste to the injury of members of CCSA who own property along Escambia Creek

downstream of the proposed Conecuh Woods landfill; that the design, location, and size of the

proposed Conecuh Woods landfill may destroy or modify habitat and jeopardize the continued

existence or reduce the population of endangered or threatened species known or believed to occur in

Conecuh County, specifically the red cockaded woodpecker, wood stork, and Louisiana quillwort and

deprive members of CCSA of the opportunity to enjoy observing such species; that the structural


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integrity of the proposed Conecuh Woods landfill may be damaged by nearby active faults and result

in the release of solid waste and leachate into the environment to the injury of the environmental

interests of CCSAs members; that the proposed landfill will cause the discharge of pollutants into

waters of the State, including wetlands, and may degrade wetlands to the injury of the environmental

interests of CCSAs members; that the operation of the proposed Conecuh Woods landfill may result

in litter, dust, noise and odor to the injury of the environmental interests of CCSAs members; that the

design of the proposed Conecuh Woods landfill may not be adequate to resist horizontal acceleration

in lithified earth material resulting from seismic activity and may compromise containment structures,

including liners, leachate collection systems, and surface water control systems and may cause the

release of solid waste and leachate into the environment to the injury of the environmental interests of

CCSAs members; that the location of the proposed Conecuh Woods landfill may damage or destroy

archaeologically or historically sensitive areas to the injury of the interests of CCSAs members in

preserving and protecting archeological and historical resources; and that the operation of the

proposed landfill may result in litter, dust, noise and odor to the injury of the environmental interests

of CCSAs members. Second Amended Complaint 1. The Complaint further alleges that Plaintiff

Paul Battle is a Conecuh County taxpayer and member of CCSA; that he owns property and a house

approximately thirteen hundred feet from the proposed Conecuh Woods landfill property line; that he

believes that the construction and operation of the Conecuh Woods landfill will reduce the value of

his property; that he believes the landfill will create offensive noises and odors that will diminish his

enjoyment of his house and the surrounding environment and natural resources; and that he fears the


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landfill will contaminate groundwater and his well. Second Amended Complaint 2. The Complaint

alleges that Plaintiff James A. Buddy Howington is a Conecuh County taxpayer and member of

CCSA; that he owns and farms property that is approximately 4.8 miles from the proposed Conecuh

Woods landfill property line; that he believes the landfill will create offensive odors that will diminish

his enjoyment of the environment and natural resources on his property; that he believes that the

increased truck traffic on Highway 41 that will result from operation of the landfill will make his

travel on Highway 41 more hazardous; that active faults or seismic activity could damage the

structural integrity of the proposed landfill and result in the release of leachate into groundwater that

could contaminate his well and may require that he treat the water or discontinue farming. Second

Amended Complaint 3. The Complaint alleges that JamesBilly Smith is a Native American,

member of the Poarch Band of Creek Indians, and member of CCSA; that he believes archeological

and historical resources related the Poarch Band of Creek Indians exist on the property where the

proposed Conecuh Woods landfill is to be located; and that the construction of the proposed landfill

will disturb or destroy these resources. Second Amended Complaint 4. The Complaint alleges that

Plaintiff George M. Jervey is a Conecuh County taxpayer and member of CCSA; that he lives

approximately three miles from the proposed Conecuh Woods landfill property line; that he believes

construction and operation of the proposed Conecuh Woods landfill will diminish the value of his

property; that he believes operation of the proposed Conecuh Woods landfill will result in unsightly

litter on the highways, especially Highway 41; and that he believes the proposed Conecuh Woods

landfill may contaminate groundwater and his well. Second Amended Complaint 5. The Complaint


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alleges that Plaintiff William Donald Smith is a Conecuh County taxpayer and member of CCSA.

Second Amended Complaint 6. These allegations identify the concrete interests that could be

impaired by disregard of the procedural requirements of theConecuh County Solid Waste

Management Plan.

Plaintiffs have also identified the procedural requirements of theConecuh County Solid Waste

Management Planthat the Conecuh County Commission and commissioners adopted pursuant to Ala.

Code 1975, 22-27-47 but failed to comply with. Second Amended Complaint 47-49. These

procedural requirements are designed to protect the threatened concrete interests of Plaintiffs. For

example, the Exclusionary Guidelines of Section 12.2 of theConecuh County Solid Waste

Management Planincorporate State landfill siting criteria which are designed to protect the functions

of floodplains; protect endangered species and their habitats; prevent damage to the structural integrity

of the landfill caused by faults and seismic impacts; protect archeological and historical resources;

protect water quality; and protect wetlands and other ecological resources. Second Amended

Complaint 47. These procedural requirements are enforceable by Plaintiffs without the necessity of

showing that an injury to their concrete interests is imminent or certain because disregarding any of

them could later - perhaps years later - impair Plaintiffs non-procedural, concrete interests. See

Lujan v. Defenders of Wi ldl ife, 504 U.S. at 572 n. 7 (plaintiff has standing even though he cannot

establish with any certainty that the procedural requirements will cause a license to be withheld or

altered, and even though the project will not be completed for many years).

Plaintiffs allegations related to their procedural injuries and threatened concrete interests are


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sufficient to withstand a motion to dismiss under Ala. R. Civ. P. 12(b)(1). Accordingly, Conecuh

Woods, LLCs Motion to Dismiss for lack of standing under Ala. R. Civ. P. 12(b)(1) is due to be

denied.

B. Ripeness

Conecuh Woods, LLC argues that Plaintiffs claims are not ripe for judicial review because

certain administrative processes specifically ADEMs determination to issue or deny a permit for the

landfill, are not yet completed and that delay would allow for completion of those processes, would

avoid abstract or hypothetical determinations by the Court, and would result in no hardship to

Plaintiffs.

Alabama courts have ruled that[l]egal issues relating to host-government approval may be

ripe for review, regardless of whether all necessary permits have been obtained. Ala. Disposal

Solutions-Landfil l, L.L.C. v. Town of Lowndesboro, 837 S.2d 292, 298 (Ala. Civ. App. 2002) (citing

Fitzjarrald v. City of Hunstsvil le, 597 So.2d 1378 (Ala. Civ. App. 1992)). Simply put,[i]t does not

matter that ADEM has not issued a permit yet. ADEMs decision is separate and apart from the citys

decision. Ala. Disposal Solutions-Landfil l, L .L.C., 837 So.2d at 298 (quotingFitzjarrald, 597 So.2d

at 1380). See Lujan v. Defenders of Wi ldl if e, 504 U.S. at 572 n. 7 (although a proposed action and its

effects may not materialize for years, a person whos concrete interests may ultimately be affected by

the agency action has the right to challenge the agencys non-compliance with procedural mandates

immediately). Accordingly, Plaintiffs claims are ripe for review and Conecuh Woods, LLCs Motion

to Dismiss under Ala. R. Civ. P. 12(b)(1) is due to be denied.


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C. Exhaustion of administrative remedies

Conecuh Woods, LLC asserts that Plaintiffs have no right to sue the Conecuh County

Commission or the commissioners before completion of ADEMs administrative review, including the

administrative appeal authorized by Ala. Code 1975, 22-22A-7(c). Although Alabama recognizes

the doctrine of exhaustion of administrative remedies, Alabama also recognizes an exception to the

rulewhere there is a defect in the power of the agency to act in any respect. City of Graysvi lle v.

Glenn, 46 So.3d 925, 929 (Ala. 2010) (quotingJefferson County v. Johnson, 333 So.2d 143, 149 (Ala.

1976)).

ADEM is authorized to issue a landfill permit if it determines that the permit application

submitted to ADEM complies with Ala. Admin. Code Div. 335-13. Ala. Admin. Code r. 335-13-

5-.03(2)(b). However, ADEM may not consider an application for a new or modified permit for a

facility unless such application has first received approval by the affected unit of local government

having an approved solid waste management plan. Ala. Code 1975, 22-27-48(a). To ensure

compliance with the latter prohibition, Ala. Admin. Code r. 335-13-5-.02(1) requires that an applicant

submit evidence of[h]ost government approval, as provided in the Ala. Code 1975, 22-27-48. No

statute or rule authorizes ADEM to review the merits of a host governments approval of a proposed

landfill. Thus, there is a defect in ADEMs power to act with respect to the Conecuh County

Commissions approval of the proposed landfill and exhaustion of the ADEM permitting scheme is

not required.

Moreover, Ala. Code 1975, 22-22A-7(c) authorizes the Alabama Environmental


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Management Commission to conduct a de novo review of any administrative actionof the

department (i.e., ADEM), and to modify, approve, or disapprove suchadministrative action.

(Emphasis added). Anadministrative action is defined in Ala. Code 1975, 22-22A-3(8) as[t]he

issuance, modification, repeal or denial of any permit, license, certification, or variance, or the

issuance, modification or repeal of any order, notice of violation, citation, rule or regulationby the

department (i.e., ADEM). (Emphasis added). Thus, the administrative review authorized by Ala.

Code 1975, 22-22A-7(c) is limited to review of actions by ADEM. The Alabama Environmental

Management Commission has no power to review and modify, approve or disapprove a determination

made by a local governing body under Ala. Code 1975, 22-27-48 to approve a solid waste disposal

site. Thus, there is a defect in the Alabama Environmental Management Commissions power to act

with respect to the Conecuh County Commissions approval of the proposed landfill and exhaustion

of the appeal permitted by Ala. Code 1975, 22-22A-7(c) is not required.

Accordingly, Plaintiffs are not required to exhaust these remedies and Conecuh Woods,

LLCs Motion to Dismiss under Ala. R. Civ. P. 12(b)(1) is due to be denied.

D. Failure to state a claimupon which relief can be granted

Finally, Conecuh Woods, LLC asserts that Plaintiffs fail to state a claim upon which relief can

be granted. Specifically, Conecuh Woods, LLC argues that the due process requirements of

Constitution of Alabama 1901 do not demand that an official government interest not benefit from a

decision, particularly if neutral judicial review is thereafter available. Furthermore, Conecuh Woods,

LLC argues that Plaintiffs have an adequate remedy that precludes resort to the extraordinary writ of


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certiorari.

Plaintiffs allege in Count V that the probability of actual bias on the part of the Conecuh

County Commission and commissioners was too high to be constitutionally tolerable when their

approval of theApplicati on for Approval of Proposed Conecuh Woods Solid Waste Management

Facilitywould yield hundreds of millions of dollars in revenue for the County and the Commission

and commissioners were responsible for raising and expending revenues. Second Amended

Complaint 20-22, 43, 81. Not only is a biased decision maker constitutionally unacceptable, but

our system of law has always endeavored to prevent even the probability of unfairness.

In pursuit of

this end, various situations have been identified in which experience teaches that the probability of

actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.

Among these cases are those in which the adjudicator has a pecuniary interest in the outcome, . . ..

Withrow v. Larkin, 421 U.S. at 46-47 (citations omitted). The United States Supreme Court has held

that the probability of actual bias on the part of the judge or decision maker is too high to be

constitutionally tolerable when the decision will financially benefit the public fisc over which the

decision maker also has responsibility. Tumey v. Ohio, 273 U.S. 510, 532-533 (1927);Ward v.

Vil lage of Monroevil le, 409 U.S. 57, 60 (1972). The Alabama Supreme Court has interpreted the

due process guaranteed under the Alabama Constitution to be coextensive with the due process

guaranteed under the United States Constitution. Ex parte Dragomir, 65 So.3d 388, 390 (Ala. 2010)

(quotingEx parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala. 2010), in turn quotingElli ott v. Van

Kleef, 830 So.2d 726, 730 (Ala. 2002)). Moreover, [a]n unbiased and impartial decision-maker is


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one of the most, if not the most, fundamental of requirements of fairness and due process.

Stallworth v. Ci ty of Evergreen, 680 So.2d 229, 233-234 (Ala. 1996). In addition, subsequent

neutral judicial review does not cure the due process violation by the Commission or

commissioners. See Ward v. V il lage of Monroevill e, 409 U.S. at 61-62 (Petitioner is entitled to a

neutral and detached judge in the first instance);Concrete Pipe and Prod. of Calif., Inc. v. Constr.

Laborers Pension Trust for S. Calif., 508 U.S. 602, 618 (1993) (Even appeal and a trial de novo will

not cure a failure to provide a neutral and detached adjudicator). The Court concludes that Plaintiffs

Count V states a claim upon which relief can be granted.

Conecuh Woods, LLC also asserts that a petition for common law writ of certiorari is not a

remedy available to Plaintiffs because an adequate remedy is provided in Ala. Code 1975, 22-22A-7

(c). As discussed in Part II. C. above, the remedy provided in Ala. Code 1975, 22-22A-7(c) cannot

address the merits of the Conecuh County Commissions approval of theApplication for Approval of

Proposed Conecuh Woods Solid Waste Management Facil ityand does not provide Plaintiffs with an

adequate remedy.

Accordingly, Conecuh Woods, LLCs Motion to Dismiss under Ala. R. Civ. P. 12(b)(6) is due

to be denied.

III. Plaintiffs Motion for Summary Judgment

On a motion for summary judgment, the Court must determine whether the movant has made

a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a

judgment as a matter of law. In determining whether the movant has carried that burden, the court is


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to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable

inferences in favor of that party. To defeat a properly supported summary judgment motion, the

nonmoving party must presentsubstantial evidence creating a genuine issue of material fact --

evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment

can reasonably infer the existence of the fact sought to be proved. Ala. R. Civ. P. 56;Miller

Trucking, LLC v. APAC Mid-South Inc., [Ms. 1110724, Jan. 11, 2013] ___ So.3d ___ (Ala. 2013).

Like any other fact essential to recovery, the plaintiff has the burden of

proving standing. See Lujan v. Defenders of Wi ldl if e, 504 U.S. 555, 561, 112 S.Ct.

2130, 119 L.Ed.2d 351 (1992). At the summary-judgment stage, a plaintiff asserting

standing cannot rest on mere allegations in the complaint, seeDover Historical Socy

v. City of Dover Planning Commn, 838 A.2d 1103 (Del. 2003), but must prove

standing through specific facts set forth by affidavit or other evidence.Grayson v. AT

& T Corp., 15 A.3d 219 (D.C. 2011).

Byrd v. MorEquity, Inc., 94 So. 3d 378, 379 (Ala. Civ. App. 2012).

A. Count I

Count I of Plaintiffs Second Amended Complaint seeks a common law writ of certiorari to

review the Conecuh County Commissions approval of theApplication for Approval of Proposed

Conecuh Woods Solid Waste Management Facility.

Standing

As discussed in Part II. A. above, a plaintiff has standing to enforce procedural rights, so long


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as the procedures in question are designed to protect some threatened concrete interest of his that is

the ultimate basis of his standing. Lujan v. Defenders of Wildli fe, 504 U.S. at 573 n. 8. The injury to

a plaintiffs concrete interests need not be imminent or certain. See id. at 572 n. 7 (plaintiff has

standing even though he cannot establish with any certainty that the procedural requirements will

cause a license to be withheld or altered, and even though the project will not be completed for many

years). Plaintiffs have filed affidavits from Paul Battle, James A. Buddy Howington, George M.

Jervey, William Donald Smith, JamesBilly Smith, Mark Bailey, Vaughn Stough, Avalisha Fisher

(flood expert), and Diane Hite (property devaluation expert) attesting to the concrete interests of

Plaintiffs that are threatened by the landfill, including reduced property values, offensive noises and

odors that will diminish enjoyment of property, unsightly litter on the highways, the destruction of

archeological and historical resources of Native Americans, the degradation of wetlands, the

destruction or modification of habitat of endangered species and reduction in populations of

endangered species, and soil erosion or solid waste washout from alterations of the 100-year

floodplain. Thus, Plaintiffs have demonstrated threatened injuries in fact to their concrete interests.

Plaintiffs have also shown that the procedures set forth in theConecuh County Solid Waste

Management Planare designed tomaximize the protection of public health and the environment

and ensure traffic safety, protect sensitive land uses, ensure the adequacy of public services and

improvements necessary to support the facility (e.g., water, sewer, electric, etc.), ensure the

availability of police, fire, medical and emergency response services, minimize waste transportation

costs, and minimize adverse impacts on property values. As discussed below, Plaintiffs have


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demonstrated that the Conecuh County Commission arbitrarily and capriciously disregarded or failed

to follow the procedures set forth in theConecuh County Solid Waste Management Planwhen

considering the Applicati on for Approval of Proposed Conecuh Woods Solid Waste Management

Facility. The Court has the power to redress Plaintiffs threatened injuries by setting aside the

Commissions approval of theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facility. Accordingly, Plaintiffs have standing to seek a common law writ of certiorari.

Conecuh Woods, LLC presents no affidavits or deposition testimony contradicting Plaintiffs

claims of threatened injuries to their concrete interests. Rather, Conecuh Woods, LLC argues that

Plaintiffs injuries to their concrete interests are neither imminent nor certain and are therefore

insufficient to support standing. Conecuh Woods, LLC fails to acknowledge however, that in a

procedural injury case such as this one, the injury to a plaintiffs concrete interests need not be

imminent or certain. Lujan v. Defenders of Wildli fe, 504 U.S. at 573 n. 7 (plaintiff has standing even

though he cannot establish with any certainty that the procedural requirements will cause a license to

be withheld or altered, and even though the project will not be completed for many years).

Accordingly, the Court finds that Plaintiffs have standing to present the claim in Count I.

Merits

On common-law certiorari review, the circuit courts scope of review is limited to determining

if the subordinate tribunals decision is supported by legal evidence and if the law was correctly

applied to the facts. In addition, the court is responsible for reviewing the record to ensure that the

fundamental rights of the parties, including the right to due process, has not been violated. Questions


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of fact or weight or sufficiency of the evidence will not be reviewed on certiorari. Franks v. Jordan,

55 So.3d 1218, 1220-21 (Ala. Civ. App. 2010). Accord, Fox v. City of Huntsvil le, 9 So.3d 1229,

1232 (Ala. 2008). [T]he circuit courts review on a common-law writ of certiorari [is] limited to the

record before the [subordinate tribunal]. Id.

1. Exclusionary Guidelines

Section 12.2 of theConecuh County Solid Waste Management Planprovides:

EXCLUSIONARY GUIDELINES

To maximize the protection of public health and the environment, regulations requirethat solid waste facilities meet specific State and Federal siting requirements for the

particular type of facility in question (see Article III, Section 11 for general siting

requirements). When considering approval of solid waste facilities, the County

Commission should consider how well the planned facility addresses these

requirements. Should a proposed facility not meet these siting requirements, it should

be excluded from further consideration by the Commission. []

The State landfill siting requirements are found at Ala. Admin. Code r. 335-13-4-.01. These

requirements address the siting of landfills in or near wetlands, archeologically or historically

sensitive sites, endangered species and their habitats, floodplains, seismic impact zones, active faults,

and other requirements.

The Conecuh County Commission contracted with Engineering Service Associates, Inc.

(ESA) to perform an independent review and evaluation of the proposed landfill application

submitted to the Commission by Conecuh Woods, LLC on January 21, 2011.

ESA explained that

[t]he purpose of this review was to determine if the proposed facility, a municipal solid waste

(MSW) landfill, satisfies specific State and Federal siting requirements (Exclusionary Guidelines) for


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the particular type of facility being proposed. If the proposed facility met the siting requirements,

then an evaluation of the proposed project was to be performed using the required Comparative

Evaluation Criteria method as described in the CCSWMP.

ESA submitted aReview and Evaluation of the Appli cation for Approval of Proposed

Conecuh Woods Solid Waste Management Facility Conecuh County, Alabamadated February 24,

2011 to the Conecuh County Commission, and a supplemental letter-report dated April 4, 2011 to

Richard D.C. Nix, Conecuh County Attorney. For most of the State siting requirements referred to in

the Exclusionary Guidelines, ESA simply summarized the limited information provided in the

Application, and concluded that ADEM would ensure that the State siting requirements were met

when Conecuh Woods, LLC submitted a permit application to ADEM. This was so with respect to

State siting requirements for wetlands, floodplains, seismic impact zones, unstable areas,

archaeologically and historically sensitive sites, endangered species, and active fault areas.

Throughout this evaluation process, it was clearly ESAs position that the Conecuh County

Commission was not required to ensure that the proposed landfill complied with the State siting

requirements referenced in the Exclusionary Guidelines. The Conecuh County commissioners relied

on ESAs evaluation. Four commissioners expressed the view that they were not responsible for

evaluating the State siting requirements referenced in the Exclusionary Guidelines. Rather, they

claimed, that was the responsibility of ADEM.

The Conecuh County Commission failed toconsider how well the planned facility

addresses the State siting requirements. In doing so, the Commission arbitrarily failed to apply the


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Exclusionary Guidelines to theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facility. Accordingly, Plaintiffs Petition for Common Law Writ of Certiorari is due to

be granted and the Commissions April 18, 2011 approval of theApplication for Approval of

Proposed Conecuh Woods Solid Waste Management Facil ityby the Conecuh County Commission is

due to be set aside.

2. Wetlands

Among the State siting requirements is the following: Landfill units including buffer zones

shall not be permissible in wetlands, beaches or dunes.

Ala. Admin. Code r. 335-13-4-.01(2)(c)

(emphasis added). It is uncontradicted that theApplication for Approval of Proposed Conecuh Woods

Solid Waste Management Facility(Figure 1-4) shows that disposal cells 2, 3, 5, and 6 will be located

in and displace wetlands, rather than completely avoid wetlands as required by Ala. Admin. Code r.

335-13-4-.01(2)(c). Thus, theApplicationconclusively demonstrates that the State siting requirement

for wetlands is not met.Should a proposed facility not meet these siting requirements, it should be

excluded from further consideration by the Commission. Conecuh County Solid Waste Management

Plan 12.2. The Conecuh County Commission however, disregarded the uncontradicted evidence of

non-compliance with the siting requirements and approved theApplication.

The Conecuh County Commissions determination that the State siting requirement for

wetlands was met is contrary to the uncontradicted evidence, arbitrary and capricious, and not in

accord with theConecuh County Solid Waste Management Plan. Accordingly, PlaintiffsPetition for

Common Law Writ of Certiorari is due to be granted and the Commissions April 18, 2011 approval

of theApplication for Approval of Proposed Conecuh Woods Solid Waste Management Facil ityby

the Conecuh County Commission is due to be set aside.

3. Evaluation of public comments


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Ala. Code 1975, 22-27-48(a) provides in part:

Any determination by the local governing body of the proposed issuance of or

modification of a permit for a new or existing solid waste management site or the

proposal to contract for any services described in the solid waste management plan,

shall be made in a public meeting only after public notice of such application or

proposal and anopportunity for public commentis provided.

(Emphasis added). Obviously, this provision contemplates that local governing bodies will not only

receive comments from the public, but will also evaluate those comments. In addition, Section 13.2

of theConecuh County Solid Waste Management Plandescribes some of the public participation

procedures that the Conecuh County Commission must observe:

Public input into the evaluation and approval process can take the form of public

testimony in the public hearing (see above for a description of public hearings that

may take place) and/or written comments or questions to be addressed by the

governing body. Minutes of the public hearing and testimonies shall be transcribed or

recorded. Testimony and written comments/questions wi ll be evaluated by the

governing body, which shall provide written or published responses.

(Emphasis added). This provision mandates that the Commission evaluate public comments.

It is undisputed that on April 7, 2011, the attorney for CCSA submitted a 29-page analysis of

the Exclusionary Guidelines and Comparative Evaluation Criteria and evidence related thereto to the

Conecuh County Attorney, Richard Nix. These comments addressed all of the State and federal siting

requirements referenced by the Exclusionary Guidelines and all of the Comparative Evaluation

Criteria of theConecuh County Solid Waste Management Plan. It is also undisputed that on April 15,

2011, the attorney for the Town of Repton submitted comments to the Conecuh County Commission.

These comments addressed several of the State and federal siting requirements referenced by the

Exclusionary Guidelines and several of the Comparative Evaluation Criteria of theConecuh County


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Solid Waste Management Plan.

It is undisputed that, in the course of this litigation, the Conecuh County Commission

produced to Plaintiffs attorney over 5,000 pages of documents, Bates stamp numbered 0001 through

5544, which had accumulated in connection with the requirements imposed on a governing body

considering a landfill application as set forth in Ala. Code 1975, 22-27-48. It is undisputed that the

April 7, 2011 and April 15, 2011 comment letters were not among the documents represented to be

included in the administrative record. The Commission did not subsequently produce a Bates

stamped copy of either the April 7, 2011 or April 15, 2011 comment letters. Nor did the Commission

assert by affidavit or otherwise that the April 7, 2011 and April 15, 2011 comment letters were

included in the administrative record and evaluated by the Commission prior to rendering a decision

on theApplication for Approval of Proposed Conecuh Woods Solid Waste Management Facil ity,

despite not being Bates stamped.

The omission of the April 7, 2011 and April 15, 2011 comment letters from the administrative

record considered by the Commission prior to rendering a decision on theApplication for Approval of

Proposed Conecuh Woods Solid Waste Management Facil ityviolates the procedural requirements of

Ala. Code 1975, 22-27-48(a) and Section 13.2 of theConecuh County Solid Waste Management

Planthat the Commission evaluate all public comments. The statutory procedures set out in 22-27-

48(a) were not followed by the Commission and approval of theApplication for Approval of

Proposed Conecuh Woods Solid Waste Management Facil itywas unlawfully obtained. See

Fitzjarrald, 597 So.2d at 1379-80 (If appellants can establish that the statutory procedures set out in


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22-27-48(a) were not followed, then the local approval was unlawfully obtained . . .). Accordingly,

Plaintiffs Petition for Common Law Writ of Certiorari is due to be granted and the Commissions

April 18, 2011 approval of theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facilityby the Conecuh County Commission is due to be set aside.

C. Count II

Count II of Plaintiffs Second Amended Complaint alleges that the Conecuh County

Commission unlawfully approved theApplication for Approval of Proposed Conecuh Woods Solid

Waste Management Facilitybecause it did not make a

pertinent document

(i.e., theMunicipal Solid

Waste Landfill Development and Host Fee Agreement) available for public inspection prior to the

April 18, 2011 determination on theApplicationas required by Ala. Code 1975, 22-27-48(a).

Standing

Plaintiffs standing under Count II is based on their right to enforce the procedural

requirements of Ala. Code 1975, 22-27-48(a) andConecuh County Solid Waste Management Plan

13.2 which are designed to protect their threatened concrete interests that are the ultimate basis of

their standing. The standing analysis is the same as described above for Count I. Accordingly, the

Court finds that Plaintiffs have standing to present the claim in Count II.

Merits

Ala. Code 1975, 22-27-48(a) establishes the procedures that governing bodies must follow

to approve or disapprove proposed solid waste management sites within their jurisdictions. These

includepublic notice of the application or proposal and an opportunity for public comment . . ..


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The public notice must identify a contact person from whom interested persons can obtain additional

information and can review copies of both the local plan and the application or proposal to be

considered. In addition to the application and local plan, 22-27-48(a) requires that[a]ll pertinent

documents shall be available for inspection during normal business hours at a location readily

accessible to the public. Accord, Conecuh County Solid Waste Management Plan 13.2.

It is undisputed that theMunicipal Solid Waste Landfi ll Development and Host Fee

Agreementwas an important consideration of the Conecuh County Commission in deciding whether

to approve theApplication for Approval of Proposed Conecuh Woods Solid Waste Management

Facilityat the April 18, 2011 special meeting of the Commission. It is also undisputed that the

Municipal Solid Waste Landfi ll Development and Host Fee Agreementeffectively revised the

Application. Thus, theAgreementwas clearly apertinent document.

It is undisputed that the Conecuh County Commission did not make theMunicipal Solid

Waste Landfill Development and Host Fee Agreementavailable for public inspection prior to the

March 10, 2011 public hearing on theApplication. It is also undisputed that the Conecuh County

Commission did not make theMunicipal Solid Waste Landfi ll Development and Host Fee Agreement

available for public inspection on or prior to April 18, 2011, the date on which the Commission

approved theApplication.

Conecuh Woods, LLC asserts that the Commission was under no duty to make available a

pertinent document that did not exist prior to April 18, 2011. This assertion fails for two reasons.

First, it is undisputed that a preliminary draft of theAgreementexisted on April 13, 2011 when the


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Conecuh County Attorney initiated negotiations on a host fee agreement and presented a draft to

Conecuh Woods, LLC. That preliminary draft could have been made available to the public

immediately. Second, it is undisputed that a final draft of theAgreementsigned by Conecuh Woods,

LLC existed prior to the commencement of the April 18, 2011 special meeting of the Conecuh County

Commission, and could have been made available to the public prior to or even during the meeting.

The Court finds that the Commission did not make apertinent document (i.e., theMunicipal

Solid Waste Landfill Development and Host Fee Agreement) available for public inspection prior to

the April 18, 2011 determination on theApplicationas required by Ala. Code 1975, 22-27-48(a).

The statutory procedures set out in 22-27-48(a) were not followed and the local approval was

unlawfully obtained. See Fitzjarrald, 597 So.2d at 1379-80 (If appellants can establish that the

statutory procedures set out in 22-27-48(a) were not followed, then the local approval was

unlawfully obtained . . .). Accordingly, Plaintiffs are entitled to summary judgment on Count II and

the Commissions approval of theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facilityis due to be set aside.

D. Count III

Count III of Plaintiffs Second Amended Complaint alleges that theMunicipal Solid Waste

Landfill Development and Host Fee Agreementis invalid and unenforceable because the Conecuh

County Commission did not approve it by a majority vote as required by Ala. Code 1975, 11-3-7.

Standing

The Alabama Supreme Court has said that a party has standing where, among other things,


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there is an actual, concrete and particularizedinjury in fact - an invasion of a legally protected

interest. Working v. Jefferson County Election Commn, 2 So.3d 827, 832 (Ala. 2008) (internal

quotation marks and citations omitted). In a long line of decisions this Court has recognized the

right of a taxpayer to challenge, either as unconstitutional or as not conforming to statute, the

expenditure of public funds by county officers. Id. (quotingZeigler v. Baker, 344 So.2d 761, 763

(Ala. 1977)). [T]he right of a taxpayer to sue is based upon the taxpayers equitable ownership of

such funds and their liability to replenish the public treasury for the deficiency which would be caused

by the misappropriation.

Id. at 833 (quotation marks and citations omitted).

Plaintiffs William Donald Smith, George M. Jervey, Paul Battle and James A.Buddy

Howington assert taxpayer standing to obtain a declaration determining whether theMunicipal Solid

Waste Landfill Development and Host Fee Agreementis valid and enforceable. It is undisputed that

these Plaintiffs are taxpayers in Conecuh County. It is undisputed that theAgreementobligates the

Conecuh County Commission to fully support and cooperate with Conecuh Woods, LLC in obtaining

all permits, licenses and approvals necessary to construct and operate the landfill; to oppose

enactment or adoption of any statute, ordinance, resolution, rule or regulation that is more stringent

than those imposed by ADEM or EPA; to oppose the assessment or levy of any taxes, fees, riders, etc.

for severance or like use of the landfill capacity; to oppose the assessment or imposition of any

surcharges to the revenue of the landfill; and to oppose the placement of any governmental revenue

collection function or authority on the landfill owner/operator. In addition, it is undisputed that the

Agreementcontemplates that Conecuh County will provide future County services to the landfill,


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including law enforcement, fire protection, and the personnel and equipment needs related thereto.

Finally, it is undisputed that theAgreementrequires that Conecuh County process complaints

received by the County from citizens or other interested parties regarding the landfill, including

forwarding those complaints to Conecuh Woods, LLC; providing Conecuh Woods, LLC with

information reasonably necessary to allow the Company to respond to any complaints; and to receive

reports from Conecuh Woods, LLC regarding the circumstances and actions taken. If theAgreement

is invalid, expenditures necessary to fulfill these obligations will be a misappropriation of public funds

by County officers and Plaintiffs William Donald Smith, George M. Jervey, Paul Battle and James A.

Buddy Howington will be liable to replenish the public treasury for the deficiency which would be

caused by the misappropriation of funds.

It is well settled that a taxpayer, in certain situations, has standing to challenge aproposed

illegal expenditure and to restrain or enjoin any such expenditure. Beckerle v. Moore, 909 So.2d 185

(Ala. 2005) (emphasis added; citations omitted). Plaintiffs need not, as Conecuh Woods, LLC

suggests, wait for an illegal expenditure to occur to obtain a declaratory judgment on the validity of

theAgreementand expenditures thereunder. [O]ne of the purposes of the Declaratory Judgment Act

is to render practical help in ending a controversy that has yet to reach the stage where legal relief is

immediately available and to enable parties between whom an actual controversy exists or those

between whom litigation is inevitable to have the issues speedily determined when a speedy

determination would prevent unnecessary injury caused by the delay of ordinary judicial proceedings.

Stated another way, declaratory-judgment actions are designed to set controversies to rest before they


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lead to repudiation of obligations, invasion of rights, and the commission of wrongs. Harper, III v.

Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala. 2003). [A] party should not be forced to

wait until the event giving rise to the claim occurs before a court may determine the partys rights and

obligations. Id.

Accordingly, the Court finds that Plaintiffs William Donald Smith, George M. Jervey, Paul

Battle and James A. Buddy Howington have standing to present the claim in Count III.

Merits

Ala. Code 1975, 11-3-7 provides:

A majority of members serving on a county commission shall constitute a quorum. A

judge of probate or chair elected countywide shall be considered a member of the

county commission for purposes of determining a quorum. No ordinance, resolution,

policy, or motion shall be voted on and approved by a county commission unless a

quorum is present in the meeting chamber while the vote is taken and the matter is

approved by an affirmative vote of the majority of the members present and voting,

unless otherwise required by Alabama law.

It is undisputed that the purpose for and agenda of the special meeting held by the

Commission on April 18, 2011 was noticed asDeliberate And Vote on Landfill Application.

Admin. R. Excerpts at Conecuh County 000303. It is undisputed that the notice of the special

meeting did not mention theMunicipal Solid Waste Landfi ll Development and Host Fee Agreement.

And, it is undisputed that the only item actually voted on at the special meeting on April 18, 2011 was

theapplication of Conecuh Woods, LLC, to develop a municipal solid waste landfill here in Conecuh

County. Minutes of Conecuh County Special Meeting of April 18, 2011, CCSA4912. It is

undisputed that theConecuh County Commission did not discuss theAgreementat the April 18, 2011


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special meeting of the Commission. Transcript of Conecuh County Special Meeting of April 18,

2011, CCSA4913-4919. It is undisputed that the Conecuh County Commission did not vote to

approve theAgreementduring the April 18, 2011 special meeting of the Commission. Thus, the

Commission, as a collegial body, did not vote to approve theAgreement. Nevertheless, it is

undisputed that the chairman of the Conecuh County Commission signed theMunicipal Solid Waste

Landfill Development and Host Fee Agreementon April 18, 2011.

Conecuh Woods, LLC argues that theMunicipal Solid Waste Landfi ll Development and Host

Fee Agreementis not within the scope of Ala. Code 1975, 11-3-7 because it is neither an ordinance,

resolution, policy, nor motion and therefore does not require a vote. It is beyond question that the

Conecuh County Commission can take official action only when a quorum is present and only after an

affirmative vote of the majority of the members present and voting approves such action. No such

vote took place on theMunicipal Solid Waste Landfi ll Development and Host Fee Agreementat the

April 18, 2011 special meeting or any other meeting.

Conecuh Woods, LLC also argues that Ala. Code 1975, 11-3-20(b)(2) authorizes the

Commission chair to execute theMunicipal Solid Waste Landfi ll Development and Host Fee

Agreementbecause the Commission voted on and approved theApplication for Approval of Proposed

Conecuh Woods Solid Waste Management Facility. Section 11-3-20(b)(2) authorizes the chair to

serve as signatory for the county commission on all appropriate documents, such as resolutions,

orders, contracts, or directives, as are necessary to carry out the actions of the county commission.

In the present case however, the Commissions action on theApplication for Approval of Proposed


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Conecuh Woods Solid Waste Management Facilitydoes not require that a host fee agreement be

executed to carry out that action. Indeed, host government approval of a disposal site under Ala.

Code 1975, 22-27-48 can be granted without any host fee agreement whatsoever. Thus, the

Municipal Solid Waste Landfi ll Development and Host Fee Agreementwas not necessary to carry out

the approval of theApplication for Approval of Proposed Conecuh Woods Solid Waste Management

Facility. Accordingly, Ala. Code 1975, 11-3-20(b)(2) does not authorize the chair of the

Commission to sign theMunicipal Solid Waste Landfi ll Development and Host Fee Agreement

without a vote of the Commission approving theAgreement.

The Court finds that the chair of the Conecuh County Commission did not have authority to

sign theMunicipal Solid Waste Landfi ll Development and Host Fee Agreementon behalf of the

Commission absent express approval of theAgreementby the Commission. Accordingly, Plaintiffs

are entitled to summary judgment on Count III and theAgreementis due to be declared invalid and

unenforceable.

E. Count IV

Count IV of Plaintiffs Second Amended Complaint alleges that the Conecuh County

Commission and the commissioners deprived Plaintiffs of their right to seek a common law writ of

certiorari reviewing the April 18, 2011 determination on theApplication for Approval of Proposed

Conecuh Woods Solid Waste Management Facilitybased on a complete record, including public

hearing testimony and comments/questions on theMunicipal Solid Waste Landfill Development and

Host Fee Agreement, in violation of the Due Process Clause of Art. I, 6 of the Constitution of


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Alabama 1901.

Standing

In a proceeding seeking a common law writ of certiorari, judicial review is based on the

record created by the governmental body. E.g., Fox, 9 So.3d at 1232. Thus, judicial review of the

Commissions decision on theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facilityis limited to the administrative record compiled by the Commission which

includes testimony and written comments/questions on theApplicationsubmitted by the public.

Plaintiffs assert that theMunicipal Solid Waste Landfi ll Development and Host Fee Agreement

revised theApplicationand that they were not afforded an opportunity to present testimony or submit

written comments/questions to the Conecuh County Commission regarding those revisions. Thus, the

administrative record subject to judicial review in this action does not include public comment on the

revisions made to theApplicationby theAgreement. The Conecuh County Commissions and the

commissionersfailure to afford Plaintiffs an opportunity to present testimony or submit written

comments/questions on the revisions to theApplicationhas denied Plaintiffs the right to obtain

judicial review of the Commissions approval of theApplicationbased on a complete record. As

discussed below, this denial is an injury to a constitutionally-protected property interest. Plaintiffs

injury can be redressed by the Court issuing an order setting aside the Commissions approval of the

Application. Accordingly, the Court finds that Plaintiffs have standing to present the claim in Count

IV.

Merits


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It is undisputed that the Conecuh County Commission received testimony and written

comments/questions on theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facilitythat was filed with the Commission on January 21, 2011. It is undisputed that

theMunicipal Solid Waste Landfi ll Development and Host Fee Agreementeffectively revised the

Application. It is also undisputed that the Commission never afforded the public the opportunity to

present testimony or submit written comments/questions regarding theMunicipal Solid Waste Landfil l

Development and Host Fee Agreement.

Alabama law recognizes the right of persons to seek a common law writ of certiorari to

review alleged arbitrary and capricious governmental decisions absent a right of appeal or other

adequate remedy. Fox, 9 So.3d at 1232. Accord, Ex parte Boykins, 862 So.2d 587, 593 (Ala. 2002).

SeeAla. Code 1975, 1-3-1; 6-6-642. Such right is a property interest protected by the Due Process

Clause of Art. I, 6 of the Constitution of Alabama 1901. See e.g., Logan v. Zimmerman Brush Co.,

455 U.S. 422, 432 (1982) (state-granted rights to use adjudicatory procedures are a species of

constitutionally protected property that may not be deprived without constitutionally adequate due

process procedures);Ex parte Dragomir, 65 So.3d at 390 (This Court has interpreted the due process

guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under

the United States Constitution) (quotingEx parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala. 2010),

in turn quotingEll iott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002)).

In a proceeding seeking a common law writ of certiorari, judicial review is based on the

record created by the governmental body. E.g., Fox, 9 So.3d at 1232. The record of the Conecuh


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County Commissions consideration of theApplication for Approval of Proposed Conecuh Woods

Solid Waste Management Facilitydoes not include public comment on the revisions made to the

Applicationby theMunicipal Solid Waste Landfi ll Development and Host Fee Agreement. Certiorari

review of issues concerning the revisions to theApplicationhave been impaired, foreclosed or

extinguished by the failure of the Conecuh County Commission and commissioners to afford

Plaintiffs an opportunity to present testimony and submit comments/questions on theMunicipal Solid

Waste Landfill Development and Host Fee Agreement. Thus, the Conecuh County Commission and

commissioners have deprived Plaintiffs of a constitutionally-protected property interest without

providing Plaintiffs with any due process whatsoever.

The Court finds that the Conecuh County Commission and commissioners deprived Plaintiffs

of their right to seek a common law writ of certiorari reviewing the April 18, 2011 determination on

theApplication for Approval of Proposed Conecuh Woods Solid Waste Management Facil itybased

on a complete record, including public hearing testimony and comments/questions on the revisions

made to theApplicationby theMunicipal Solid Waste Landfi ll Development and Host Fee

Agreement, in violation of the Due Process Clause of Art. I, 6 of the Constitution of Alabama 1901.

Accordingly, Plaintiffs are entitled to summary judgment on Count IV and the Commissions approval

of theApplication for Approval of Proposed Conecuh Woods Solid Waste Management Facil ityis

due to be set aside.

F. Count V

Count V of Plaintiffs Second Amended Complaint alleges that, because of the substantial


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amount of money to be paid to Conecuh County by Conecuh Woods, LLC under the terms of the

Municipal Solid Waste Landfi ll Development and Host Fee Agreement, the Conecuh County

Commission and commissioners deprived Plaintiffs of their right to an impartial determination of the

Application for Approval of Proposed Conecuh Woods Solid Waste Management Facil ityand

impartial evaluation of public comments in violation of the Due Process Clause of Art. I, 6 of the

Constitution of Alabama 1901.

Standing

Citizens of a county have a vital interest in the disposal of solid wastes within the county, in

the site approved for their disposal, and in contracts awarding the right to operate a landfill between

the county and a private corporation. Browns Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d

226, 228 (Ala. 1992). These interests are constitutionally protected interests. Id. Citizens are entitled

to constitutionally sufficient procedural due process when protected interests are to be adversely

affected by government action.

As discussed below, the Conecuh County Commission and the commissioners approved the

Application for Approval of Proposed Conecuh Woods Solid Waste Management Facil ityin violation

of constitutionally sufficient procedural due process requirements. This approval will cause Plaintiffs

to suffer threatened injuries to their concrete interests. The Court may redress Plaintiffs injuries by

entering an order setting aside the approval of theApplication. Accordingly, the Court finds that

Plaintiffs have standing to present the claim in Count V.

Merits


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It is undisputed that the Conecuh County Commission was responsible for approving the

Application for Approval of Proposed Conecuh Woods Solid Waste Management Facil ity. It is also

undisputed that the Conecuh County Commission is responsible for Conecuh County finances and that

the Conecuh County Commission and the commissioners have an interest in and responsibility for

ensuring the financial well-being of Conecuh County. It is also undisputed that immediately prior to

granting approval of theApplication for Approval of Proposed Conecuh Woods Solid Waste

Management Facilityon a 3-2 vote, the Conecuh County Commission and Conecuh Woods, LLC

completed negotiations on theMunicipal Solid Waste Landfi ll Development and Host Fee Agreement

which is estimated to yield Conecuh County $283,057,240 during the landfills expected 63-year life

if the Company is granted approval of its Application . . ..

[P]rocedural due process, protected by the Constitutions of the United States and this State,

requires notice and an opportunity to be heard when ones life, liberty, or property interests are about

to be affected by governmental action.Brown

s Ferry Waste Disposal Ctr., Inc., 611 So.2d at 228.

It is well settled law that due process must be observed by all boards . . .. Ex parte Case, 925 So.2d

956, 960 (Ala. 2005). Accord,Withrow v. Larkin, 421 U.S. 35, 46 (1975). Plaintiffs have a vital

interest in the disposal of solid wastes within the county and in the site approved for their disposal and

in the contract made between the County and Conecuh Woods, LLC. Plaintiffs are among the

citizenry affected by the proposed landfill. Art. I, 6 of the Constitution of Alabama 1901 protects

these interests against deprivation without adequate notice and hearing. See Browns Ferry Waste

Disposal Ctr., Inc., 611 So.2d at 228;Ex parte Lauderdale County, 565 So.2d 623, 627 (Ala. 1990).


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Procedural due process requires more than a hearing. An unbiased and impartial decision-

maker is one of the most, if not the most, fundamental of requirements of fairness and due process.

State Tenure Commn v. Page, 777 So.2d 126, 131 (Ala. Civ. App. 2000) (quotingStallworth v. City

of Evergreen, 680 So.2d at 233-234). The right to a fair hearing before an impartial tribunal or board

is an important fundamental right. Id.

Not only is a biased decision maker constitutionally unacceptable, butour system of law has

always endeavored to prevent even the probability of unfairness. In pursuit of this end, various

situations have been identified in which experience teaches that the probability of actual bias on the

part of the judge or decision maker is too high to be constitutionally tolerable. Among these cases are

those in which the adjudicator has a pecuniary interest in the outcome, . . .. Withrow v. Larkin, 421

U.S. at 46-47 (citations omitted). The United States Supreme Court has held that the probability of

actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable when

the decision will financially benefit the public fisc over which the decision maker also has

responsibility. Tumey v. Ohio, 273 U.S. at 532-533;Ward v. Vi ll age of Monroevill e, 409 U.S. at 60.

See Ex parte Dragomir, 65 So.3d at 390 (This Court has interpreted the due process guaranteed

under the Alabama Constitution to be coextensive with the due process guaranteed under the United

States Constitution) (quotingEx parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala. 2010), in turn

quotingEll iott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002)).

Under the undisputed facts of the present case, the probability of actual bias on the part of the

Conecuh County Commission and county commissioners was too high to be constitutionally tolerable.


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The Court finds that the April 18, 2011 approval of theApplication for Approval of Proposed

Conecuh Woods Solid Waste Management Facilityby the Conecuh County Commission was the

result of unconstitutional procedure. Accordingly, Plaintiffs are entitled to summary judgment on

Count V and the Commissions approval of theApplication for Approval of Proposed Conecuh

Woods Solid Waste Management Facilityis due to be set aside.

G. Count VI

Count VI of Plaintiffs Second Amended Complaint alleges that the County commissioners

conducted a meeting of the Conecuh County Commission in the Conference Room at the Conecuh

County Courthouse prior to 9:00 A.M. on April 18, 2011 and disregarded the requirements in Ala.

Code 1975, 36-25A-3 for proper notice of the meeting in violation of the Alabama Open Meetings

Act.

Standing

Standing to enforce the Alabama Open Meetings Act is restricted to the following persons,

organizations and officials:

Enforcement of this chapter may be sought by civil action brought in the

county where the governmental bodys primary office is located by any media

organization, any Alabama citizen, the Attorney General, or the district attorney for

the circuit in which the governmental body is located; provided, however, that no

member of a governmental body may serve as a plaintiff in an action brought against

another member of the same governmental body for an alleged violation of this

chapter.

Ala. Code 1975, 36-25A-9(a).

Plaintiffs William Donald Smith, George M. Jervey, and James A.Buddy Howington are


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residents, property owners, and taxpayers in Conecuh County, Alabama. Accordingly, these Plaintiffs

have statutory standing to enforce the Alabama Open Meetings Act.

Merits

By agreement of the parties, the summary judgment hearing conducted by the Court on June

20, 2013 also served as the preliminary hearing required under Ala. Code 1975, 36-25A-9. Section

36-25A-9 provides:

(b) In the preliminary hearing on the complaint, the plaintiff shall establish by

a preponderance of the evidence that a meeting of the governmental body occurred

and that each defendant attended the meeting. Additionally, to establish a prima facie

case the plaintiff must present substantial evidence of one or more of the following

claims:

(1) That the defendants disregarded the requirements for proper notice of the

meeting pursuant to the applicable methods set forth in Section 36-25A-3.

* * *

(c) If the court finds that the plaintiff has met its initial burden of proof as

required in subsection (b) at the preliminary hearing, the court shall establish a

schedule for discovery and set the matter for a hearing on the merits.

It is undisputed that a gathering of the commissioners in the conference room of the Conecuh

County Courthouse occurred on April 18, 2011 immediately prior to the scheduled special meeting of

the County Commission. Plaintiffs have failed, however, to meet their initial burden of proving by a

preponderance of the evidence that the gathering of commissioners constituted ameeting, as

defined in Ala. Code 1975, 36-25A-2(6), of the Conecuh County Commission. Accordingly,


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Plaintiffs Motion for Summary Judgment on Count VI is due to be denied and Count VI is due to be

dismissed.

IV. Conclusion

Upon consideration of the pleadings, motions, briefs, affidavits, answers to interrogatories,

admissions, depositions, administrative record excerpts, other evidentiary materials, and arguments of

counsel made at hearing on the motions on June 20, 2013, the Court hereby ORDERS, ADJUDGES,

AND DECREES as follows:

A. The Court has jurisdiction of the subject matter of this action;

B. Plaintiffs Motion to Supplement Administrative Record is GRANTED;

C. Conecuh Woods, LLCs Motion to Dismiss is DENIED;

D. Plaintiffs Petition for Common Law Writ of Certiorari in Count I of their Second

Amended Complaint is GRANTED;

E. PlaintiffsMotion for Summary Judgment on Counts I through V of their Second

Amended Complaint is GRANTED;

F. The Commissions April 18, 2011 approval of theApplication for Approval of

Proposed Conecuh Woods Solid Waste Management Facil ityis hereby SET ASIDE;

G. TheMunicipal Solid Waste Landfi ll Development and Host FeeAgreement executed

by Conecuh Woods, LLC and the Chairman of the Commission on April 18, 2011 is hereby declared

to be INVALID and UNENFORCEABLE;

H. Plaintiffs Motion for Summary Judgment on Count VI of their Second Amended


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Complaint is DENIED and Count VI is DISMISSED WITH PREJUDICE; and

I. This order is a final judgment as to each and every claim of the Plaintiffs against each

of the Defendants, and there is no just cause for delay of entry of final judgment. Each party shall

pay its own costs and attorneys fees of the action preceding the entry of this judgment.

DONE this 6th day of August, 2013.

/s/ HON. BURT SMITHART

CIRCUIT JUDGE

Documents

Citizens for a Clean SW Alabama Ruling