Opinion
No. 6:02 CV 00043
November 15, 2002
ORDER
This matter is currently before the Court on the defendants' motion under Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the Plaintiffs' complaint. For the reasons stated in the attached Memorandum Opinion, the Defendant's Motion to Dismiss shall be, and hereby is, GRANTED in part and DENIED in part. Specifically,
(1) the Defendants' motion to dismiss Count One of the Plaintiffs' complaint shall be, and hereby is, DENIED;
(2) the Defendants' motion to dismiss Count Two of the Plaintiffs' complaint shall be, and hereby is, GRANTED;
(3) the Defendants' motion to dismiss Count Three of the Plaintiffs' complaint shall be, and hereby is, GRANTED;
(4) the Defendants' motion to dismiss Count Four of the Plaintiffs' complaint shall be, and hereby is, DENIED;
(5) the Defendants' motion to dismiss Count Five of the Plaintiffs' complaint shall be, and hereby is, DENIED;
(6) the Defendants' motion to dismiss Count Six of the Plaintiffs' complaint shall be, and hereby is, DENIED;
(7) the Defendants' motion to dismiss Count Seven of the Plaintiffs' complaint shall be, and hereby is, GRANTED;
(8) the Defendants' motion to dismiss Count Eight of the Plaintiffs' complaint shall be, and hereby is, GRANTED; and
(9) the Defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(1) is DENIED.
It is so ORDERED.
The Clerk of the Court is hereby directed to send a copy of this Order and the attached Opinion to all counsel of record.
MEMORANDUM OPINION
This matter is before the Court on the Motion to Dismiss filed by Defendants Appomattox County, the Board of Supervisors of Appomattox County, and Darrell Carroll, Jr., the County Administrator of Appomattox County ("Defendants" or "County"), pursuant to Fed.R.Civ.P. 12(b)(1) and (6). The original Complaint seeks money damages, as well as injunctive and declaratory relief in opposition to two ordinances, adopted by the County, related to the land application of biosolids ("Ordinances"). The County's Motion to Dismiss disputes all eight counts of the Plaintiffs' original Complaint, as well as the clarification to Count Four in the Plaintiffs' First Amended Complaint. This Court will grant a Motion to Dismiss based on Rule 12(b)(6) if Plaintiffs have failed to state a claim upon which relief can be granted, and under Rule 12(b)(1) if the Complaint is found to suffer from jurisdictional defects.
I. Constitutional Arguments
A. Count I: Commerce Clause
Plaintiffs assert, in Count I, that the Ordinances violate the Commerce Clause because the biosolids restrictions impose an undue burden on interstate commerce. Federal courts use a two step analysis to determine if an action violates the dormant Commerce Clause. First, the court must determine whether the Ordinances discriminate against interstate commerce. Second, the court must determine whether the Ordinances impose a burden on interstate commerce that is clearly excessive in relation to putative local benefits. C A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 390, 114 S.Ct. 1677 (1994). In effect, a law that discriminates against interstate commerce is valid only in the narrow set of cases in which the state or municipality can demonstrate that it has no other way to advance a legitimate local interest. Id. at 392.
This Court will not dismiss Count I at this stage, because Plaintiffs have stated a claim upon which relief can be granted. With further factual development, Plaintiffs may be able to present facts that show a burden clearly excessive in relation to local benefits. Therefore, this Court will deny Defendants' motion to dismiss Count I.
B. Count II: Equal Protection
In Count II, the Plaintiffs assert that the Ordinances should be invalidated because they violate the Equal Protection Clause. The Equal Protection Clause dictates that states and municipalities treat persons similarly circumstanced alike. Plyler v. Stove, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394 (1982). Plaintiffs' claim will survive Defendants' motion to dismiss this count if the complaint alleges: (1) a government agency or body intentionally treated the plaintiff differently from other, similarly situated persons; and (2) either the plaintiff is a member of a suspect class or the government relied on a "classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 105 S.Ct. 3249, 3258 (1985). Because Plaintiffs do not have a fundamental Constitutional right to apply biosolids to the ground, they are not a "suspect class" and the appropriate level of scrutiny for their Equal Protection claim is rational basis.
The Plaintiffs have failed to state a claim upon which relief can be granted on this count, when the Ordinances are subjected to rationality review. The Plaintiffs cannot demonstrate that the County's regulatory distinction between biosolids and other fertilizers was in pursuit of a goal "so attenuated as to render the distinction arbitrary and irrational." The Plaintiffs' reliance on Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073 (2000), is misplaced. In that case, when the village demanded a 33-foot easement as a condition for connecting the plaintiffs property to the water supply, and required only a 15-foot easement for other similarly situated property owners, the Supreme Court upheld the plaintiffs Equal Protection claim against a Rule 12(b)(6) motion. Id. This Court will not stretch the narrow circumstances of Village of Willowbrook to fit this case, where the classification in question is not between similarly situated homeowners but between distinct materials used as fertilizers. Defendants' motion to dismiss Count II is therefore granted, and Plaintiffs' claim based on Equal Protection is dismissed.
C. Count III: Substantive Due Process
The Plaintiffs claim that the Ordinances violate substantive due process because the Plaintiffs are deprived of a property right to their biosolids permits. Because the right to apply biosolids in conformance with permits is not a fundamental right, the Ordinances will be reviewed under the "rational-basis test." This requires showing an "arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121 (1926). The Ordinances were designed to protect the health and welfare of the citizens of Appomattox, and the Plaintiffs cannot show that the County's decision to enact the Ordinances had no substantial relationship to the stated goal of protecting the public. Accordingly, this Court will grant Defendants' motion to dismiss Count III and dismiss the Plaintiffs' substantive due process claim.
D. Count IV: Clean Water Act Preemption
The Plaintiffs also claim that the County Ordinances should be invalidated because they are preempted by the Clean Water Act. Specifically, the Plaintiffs argue that the Ordinances are preempted by federal law because they stand as an obstacle to the accomplishment of the objectives of the Clean Water Act and the federal biosolids regulations, or that the Ordinances are "conflict preempted" by federal law.
The Clean Water Act indicates that the "determination of the manner of disposal or use of sludge is a local determination." 33 U.S.C. § 1345 (e). The Clean Water Act also permits states and localities to adopt or enforce standards or limitations, so long as they are not less stringent than the Clean Water Act's standards or limitations. Id. § 1370. The Plaintiffs claim that the Ordinances stand as an obstacle to the objectives of the Clean Water Act and related regulations because of several examples of regulatory language in which EPA refers to land application as a "beneficial use" of sewage sludge, suggesting it as a useful alternative to other methods of disposal. See, e.g. 58 Fed. Reg. 9,249, 9,251 (Feb. 19, 1993). They argue, essentially, that the County's Ordinances conflict with federal environmental policy that encourages biosolids use because the Ordinances act as a ban on land application of sewage sludge.
This Court cannot, at this stage of the proceeding, dismiss the preemption claim for failure to state a claim upon which relief can be granted. The Plaintiffs have presented sufficient evidence of the federal policy concerning biosolids to support their claim; it would be improper to dismiss this claim without allowing further factual development. Thus, Defendants' motion to dismiss the preemption claim is denied.
II. State Law Claims
A. Count V: State Law Preemption
The Plaintiffs assert that state law, including the Virginia Department of Health ("VDH"). Biosolids Use Regulations, preempt local authorities from adopting the Ordinances in question. The County Board of Supervisors has the general authority to promulgate ordinances related to zoning and police powers. However, any county ordinance "must not be inconsistent with the Constitution and laws of the United States or this Commonwealth." Va. Code. Ann. § 1-13.7.
A recent Virginia Supreme Court case visited the issue of state law preemption in this arena when considering an Amelia County biosolids ordinance that amounted to an outright ban on the use of biosolids in Amelia County. Blanton v. Amelia County, 540 S.E.2d 869 (Va. 2001). The Amelia County ordinance in question was struck down for being inconsistent with state law, because the local government could not "forbid what the legislature has expressly licensed, authorized, or required." 540 S.E.2d at 874. The Defendants attempt to distinguish this case from Blanton by characterizing the Appomattox County Ordinances as a regulation of use, rather than an outright ban, but the Plaintiffs reply by pointing to legislative language limiting local authorities' ability to regulate biosolids to testing and monitoring. Va. Code Ann. § 62.1-44.19:3.
The Plaintiffs have therefore stated a state law preemption claim upon which relief can be granted. The Defendants' motion to dismiss Count V is denied.
B. Count VI: Ultra Vires
In this count, the plaintiffs claim that the Ordinances are ultra vires and therefore void under Virginia law, because the General Assembly authorizes localities only to pass ordinances for "testing and monitoring" to ensure compliance with state biosolids regulations, and the Appomattox County regulations go beyond mere "testing and monitoring." Virginia follows a rule of strict construction, known as the Dillon Rule, whereby the powers of the boards of supervisors are "fixed by statute and are limited to those conferred expressly or by necessary implication." Bd. of Supervisors of Fairfax County v. Home, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975). The Plaintiffs have therefore stated a claim upon which relief can be granted, and this Court will deny Defendants' motion to dismiss Count VI.
C. Count VII: Virginia Substantive Due Process
Plaintiffs also allege that the Ordinances violate Virginia state substantive due process protections. The standard for substantive due process violations in Virginia mimics that of federal substantive due process. Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 97, 376 S.E.2d 525, 530 (1989). Thus, for the reasons stated above in Section I (C), this count will be dismissed because the Plaintiffs have failed to state a claim upon which relief can be granted.
D. Count VIII: Special Legislation
In the final count, the Plaintiffs claim that the County Ordinances is an unconstitutional special classification, relying on the Virginia Constitution, Article IV, § 14 ( 18), which provides that "[t]he General Assembly shall not enact any local, special, or private law . . . [g]ranting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity." The prohibition on special legislation also extends to counties. Jefferson Green Unit Owner's Ass'n, Inc. v. Gwinn, 262 Va. 449, 458 n. 5, 551 S.E.2d 339, 344 n. 5 (2001). The Ordinances must bear a "reasonable and substantial relation to the object sought to be accomplished by the legislation" in order to avoid violating the prohibition on special legislation. Benderson Dev. Co. v. Sciortino, 236 Va. 136, 147, 372 S.E.2d 751, 757 (1988).
The Plaintiffs argue that the Ordinances do not reflect a "careful and deliberate study" of law and facts, but they fail to provide any support for their claim that the Ordinances violate the prohibition on special legislation. The Ordinances, which regulate the use of biosolids, are related to the County's stated objective of protecting the public. Thus, this Court will grant Defendants' motion to dismiss Count VIII, because the Plaintiffs have failed to state a claim upon which relief can be granted.
III. Jurisdictional Challenges
The Defendants also make a number of challenges to this Court's jurisdiction to hear the case, moving this Court to dismiss under Fed.R.Civ.P. 12(b)(1).
A. County Claims Procedure
The Defendants assert that this Court lacks jurisdiction over the action because the Plaintiffs failed to comply with a state statute requiring that a monetary claim be submitted first to the County under certain procedures before filing suit. Va. Code Ann. § 15.2-1243, et seq. ("County Claims Procedure"). The Plaintiffs are seeking injunctive and declaratory relief under their state and federal claims, and damages through § 1983 based on their federal claims. State notice-of-claim laws, such as the County Claims Procedure, cannot bar § 1983 claims such as the ones brought by the Plaintiffs in this case. Felder v. Casey, 487 U.S. 131, 141-42, 108 S.Ct. 2302, 2308 (1988). Thus, the Defendants cannot successfully argue that plaintiffs violated the County claims procedure when the only monetary claims against the County are protected by § 1983.
B. Sovereign Immunity
Defendants next argue that this Court should dismiss the Plaintiffs' monetary claims because the County enjoys sovereign immunity, but this argument is flawed. The Plaintiffs' monetary claims are limited to federal damages claims asserted under § 1983. Local governments, such as Appomattox County, are considered "persons" who may be held liable under § 1983. See, e.g., Alexander v. Holden, 66 F.3d 62, 68 (4th Cir. 1995) ("the defense of legislative immunity by a county to a suit under § 1983 is no longer a viable defense . . ."). The Defendants are not shielded from the federal damages claims asserted under § 1983 based on sovereign immunity, and sovereign immunity also does not protect them from suits for declaratory and injunctive relief. Consequently, this Court will deny the Defendants' motion to dismiss based on sovereign immunity.
D. Eleventh Amendment Immunity
Defendants' argument for Rule 12(b)(1) dismissal based on Eleventh Amendment immunity is flawed for a similar reason. Eleventh Amendment immunity does not extend to cities and counties. Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 369, 121 S.Ct. 955, 965 (2001). Thus, this Court will deny Defendants' motion to dismiss based on Eleventh Amendment immunity.
E. Ripeness
The Defendants also argue that this Court should dismiss Plaintiffs' claims because they are not ripe for adjudication. In order to be ripe for adjudication, there must be a "case or controversy" before the court. See, e.g., Syndicated Publ'ns, Inc. v. Montgomery County, 921 F. Supp. 1442 (D. Md. 1996). The Ordinances would amount to an effective ban on the application of biosolids in Appomattox County, and the Plaintiffs would be forced to choose between continuing to apply biosolids and risking prosecution, or discontinuing the practice. This issue is therefore ripe for controversy, and Defendants' motion is denied.
An appropriate Order will follow.
ORDER
This matter is currently before the Court on the Defendants' motions to stay the injunction pending appeal and stay the proceedings pending appeal. For the reasons stated in the attached Opinion, the Defendant's motions shall be, and hereby are, GRANTED in part and DENIED in part. Specifically,
(1) the Defendants' motion to stay the injunction pending appeal shall be, and hereby is, DENIED; and,
(2) the Defendant's motion to stay the proceedings pending appeal shall be, and hereby is, GRANTED.
It is so ORDERED.
The Clerk of the Court is hereby directed to send a copy of this Order and the attached Opinion to all counsel of record.
MEMORANDUM OPINION
This matter is before the Court on Defendant Appomattox County's ("County's") Motion for Stay of Injunction Pending Appeal and Stay of Proceedings Pending Appeal ("Motions to Stay"). On August 2, 2002, this Court entered a preliminary injunction in this case, enjoining the County from enforcing all but three conditions of the two ordinances at issue in this action. The Defendants subsequently, on September 3, 2002, filed an appeal in the United States Court of Appeals, Fourth Circuit. The Defendants then asked this Court to stay the preliminary injunction pending appeal and stay the proceedings pending appeal.
I. Stay of Injunction Pending Appeal
Rule 62(c) of the Federal Rules of Civil Procedure provides the standard for granting a stay of a preliminary injunction pending appeal. The Fourth Circuit, in Long v. Robinson, articulated four factors to be used in determining whether a stay should issue:
(1) the likelihood of prevailing on the merits of the appeal;
(2) whether the moving party will suffer irreparable injury if the stay is denied;
(3) whether the issuance of the stay would substantially injure the other parties to the appeal; and
(4) consideration of the public interest.
432 F.2d 977, 979 (4th Cir. 1970). The burden on a party requesting a stay is a heavy one, since the party seeking a stay has already lost the initial determination resulting in the preliminary injunction and the factors are similar. Wright, Miller Kane, 11 Federal Practice and Procedure § 2904 at 503-04, 513-14 (1995).
A. Likelihood of Success on the Merits
The applicant for a stay pending appeal must first show that he has a likelihood of success on the merits in an appeal. In awarding the preliminary injunction, this Court found that the Plaintiffs were likely to succeed on their claim that the Ordinance was preempted by state law. This finding was based on the County's limited authority to regulate only testing and monitoring of sewage sludge, and supported by state law. The Defendants have not produced any new evidence which would support a likelihood of success on the merits with respect to the state law claims. Therefore, this Court concludes that the Defendants do not have a likelihood of success on the merits, and the first factor weighs against granting a stay of the injunction pending appeal.
B. Irreparable Injury to Moving Party if Stay is Denied
Defendants next argue that the injunction in this matter has "effectively stripped the County of its power to protect the health, safety and general welfare of the community." Defendants' Brief at 13. They refer to the need to protect citizens from a land use that causes odors and possibly pathogens and chemical runoff adverse health and environmental impacts. These arguments resemble the arguments the Defendants used in opposition to the injunction, and this Court found, at that time, that the Defendants would not be irreparably harmed by the injunction. The Virginia General Assembly and the U.S. EPA have addressed the question of biosolids safety, permitting the ground application of sewage sludge after determining that biosolids can be safely used on farmland. Va Code Ann. § 32.1-164.5, 40 C.F.R. § 503.10, et seq., Thus, this Court finds that the Defendants will not be irreparably injured if the injunction remains in effect, and this factor weighs against staying the injunction pending appeal.
C. Injury to Other Parties
The Plaintiffs would suffer substantial injury if the injunction were stayed pending appeal. As this Court discussed when granting the preliminary injunction, Plaintiffs showed that they will suffer immediate, significant, and acute irreparable harms if the County is not prevented from imposing the biosolids Ordinance. This has not changed since the preliminary injunction was granted, and this factor also weighs against staying the injunction.
D. Consideration of Public Interest
The fourth factor requires this Court to consider the public interest in staying or declining to stay the injunction pending appeal. The public interest is best served by preserving the status quo ante litem until the merits are considered. See, e.g., Maryland Undercoating Co. v. Payne, 603 F.2d 477 (4th Cir. 1979). The status quo in Appomattox County was, and still is, that there were no ordinances banning the land application of sewage sludge. Prior to the County Ordinance, the Virginia Department of Health and EPA regulations acted to ensure the safe treatment and handling of biosolids. Thus, without staying the injunction, the state and federal regulations in place can act to further the public interest as they did prior to the enactment of the Ordinances. This final factor also weighs against staying the injunction.
II. Stay of Proceedings Pending Appeal
Defendants also request that this Court stay the proceedings pending appeal. This Court agrees with Defendants' assertion that staying the proceedings will promote judicial economy and efficiency while the appeal proceeds. If the proceedings in this Court were to continue while the Fourth Circuit appeal is pending, the simultaneous proceedings could create confusion and inefficiency. In addition, because this trial is scheduled for July, 2003, it appears unlikely that an immediate stay of the proceedings pending appeal will hinder the public's interest in a speedy resolution, as the Plaintiffs suggest.
III. Conclusion
The Defendants have not met the heavy burden of showing that the four Long factors weigh in favor of a stay of the injunction pending appeal. In fact, all four factors weigh against staying the injunction, and this Court will not take the extraordinary step of staying the previously issued preliminary injunction. This Court will, however, stay the proceedings in this matter until the pending appeal is resolved, in the interest of judicial economy.