Tri County Landfill v. Brule Co.
Annotate this CaseTri County Landfill Association, Inc.
Plaintiff and Appellee
v.
Brule County, South Dakota
Defendant and Appellant
[2000 SD 148]
South Dakota Supreme Court
Appeal from the Circuit Court of
The First Judicial Circuit
Brule County, South Dakota
Hon. Jon R. Erickson, Judge
Robert Schaub
Larson, Sundall, Larson, Schaub & Fox Chamberlain, South Dakota
Attorney for plaintiff and appellee
Steven M. Johnson
A. Russell Janklow
Johnson, Heidepriem, Miner, Marlow & Janklow
Sioux Falls, South Dakota and Sheila S. Woodward Yankton, South Dakota
Attorneys for defendant and appellant
Argued on April 26, 2000
Opinion Filed 11/29/2000
AMUNDSON, Justice.
[¶1.] Brule County (County) appeals the granting of summary judgment in favor of Tri County Landfill Association (Landfill) on its 42 USC § 1983 action. Landfill filed a notice of review raising numerous issues. We affirm in part, reverse and remand.
FACTS[¶2.] This is a companion case to a prior decision of this Court. See Tri County Landfill Ass’n v. Brule County, 535 NW2d 760 (SD 1995) (hereinafter Tri County I).[1] In Tri County I, the issue before this Court was whether Brule County’s denial of Landfill’s second requested permit to build a landfill was “arbitrary and capricious.” In the present case, we are faced with Landfill’s § 1983 action against County claiming violation of its constitutional rights by this permit denial.
[¶3.] On February 9, 1993, Brule County Commission agreed, pursuant to a resolution passed by County, to sell forty acres of land to Landfill.[2] On April 27,
1993, County’s zoning board granted Landfill a special exception to the local zoning ordinance to construct a solid waste facility on the property. Landfill subsequently filed a landfill permit application with the South Dakota Department of Environment and Natural Resources (DENR) which was tentatively approved on July 29, 1993.
[¶4.] On August 26, 1993, Clifford Lantz (Lantz), an adjoining landowner to the proposed landfill and resident of Brule County, filed a contested case petition and request for hearing. Shortly after Lantz filed his petition, several joint entities withdrew as members of Landfill; specifically, City of Mitchell, Davison County, Hutchinson County and Hanson County withdrew their association with Landfill due to concern that the landfill would not open in compliance with the federal deadline and the decision by the City of Mitchell to keep its landfill open.
[¶5.] A hearing on the contested case petition was scheduled for October 20, 1993, before the Board of Minerals and Environment (BME), but was continued until January 19, 1994. BME issued its findings of fact and conclusions of law on February 16, 1994, and concluded that Landfill’s permit complied with South Dakota’s regulations, but Landfill had failed to obtain county approval of the facility within six months prior to BME’s approval pursuant to SDCL 34A-6-103.[3] BME further concluded that the issuance of Landfill’s permit was conditioned on Landfill obtaining county reapproval and compliance with DENR’s groundwater monitoring requirements.
[¶6.] Prior to the BME hearing, a change in membership occurred on County’s Commission and a majority of members now opposed the creation of the landfill. On May 3, 1994, the Brule County Commission held a meeting and denied Landfill’s request for reapproval of the landfill site. Landfill appealed this decision to the circuit court which determined that the denial of Landfill’s reapproval was “arbitrary and capricious.” In Tri County I, on appeal before this Court, we affirmed the circuit court’s determination that County’s denial of Landfill’s permit reapproval was “arbitrary and capricious” and ordered County to reissue permit approval to Landfill. The landfill eventually opened on November 4, 1996.
[¶7.] On June 20, 1994, Landfill brought suit against County for damages under 42 USC § 1983. County thereafter moved to dismiss the action under SDCL 15-6-12 or in the alternative, a motion for summary judgment. Landfill made a motion for partial summary judgment on the issue of liability under 42 USC § 1983. Both of County’s motions were denied. The trial court, however, granted Landfill’s motion based upon this Court’s prior determination in Tri County I that County’s denial of Landfill’s permit reapproval was “arbitrary and capricious.” Thereafter, the case continued solely on the damages issue. The trial court awarded Landfill $628,428.03 in damages, prejudgment interest, attorney’s fees and costs.
[¶8.] County appeals, raising the following issues:
1. Whether Landfill established a violation of constitutional rights entitling it to summary judgment on liability under 42 USC § 1983.
2. Whether the trial court erred in awarding Landfill $193,517.04 in damages plus prejudgment interest.
3. Whether the trial court erred in awarding Landfill $359,457.96 in attorney fees.
4. Whether the trial court erred in granting Landfill costs associated with prior litigation.
5. Whether the trial court erred in denying County’s motion for jury trial and motion to amend its answer to add a counterclaim for tipping fees not paid by Landfill.
Landfill filed a notice of review, raising the following additional issues:
6. Is SDCL 34A-6-103 unconstitutional.
7. Whether the trial court erred in failing to take judicial notice of the 1995 trial transcript and exhibits.
8. Whether the trial court erred in allowing a challenge to the attorney fees and costs.
9. Whether County’s commissioners were act in an administrative capacity when they refused to reapprove the landfill.
10. Whether the trial court erred in not awarding Landfill additional damages for pre-opening administrative costs which were incurred after County had refused to reapprove the landfill.
11. Whether the trial court erred in declaring numerous exhibits irrelevant.
STANDARD OF REVIEW
[¶9.] This case involves the granting of a summary judgment motion against County on the liability aspect of Landfill’s § 1983 claim. We have often stated that
“[s]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.’” Horne v. Crozier, 1997 SD 65, ¶5, 565 NW2d 50, 52 (citing SDCL 15-6-56(c); Ford v. Moore, 1996 SD 112, ¶7, 552 NW2d 850, 852). Further, “[i]f no issues of material fact exist, and legal questions have been correctly decided, we will affirm.” Id. (citing City of Lennox v. Mitek Indus., Inc., 519 NW2d 330, 332 (SD 1994); Bego v. Gordon, 407 NW2d 801, 804 (SD 1987)).
DECISION[¶10.] 1. Whether Landfill established a violation of constitutional rights entitling it to summary judgment on liability under 42 USC § 1983.
[¶11.] Under a 42 USC § 1983 cause of action, a party may recover damages for the “'deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States caused by any person acting 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’” See Michigan Envtl. Resources Assocs., Inc. v. County of Macomb, 669 FSupp 158, 159 (EDMich 1987) (quotation omitted). In a § 1983 action, plaintiff must prove two elements. Id. First, a plaintiff must prove “that the defendant acted under color of state law.” Id. Second, the plaintiff must prove that “the defendant deprived the plaintiff of a federal right, either statutory or constitutional.” Id. (citing Gomez v. Toledo, 446 US 635, 100 SCt 1920, 64 LEd2d 572 (1980)). The parties do not dispute that County’s conduct was under “color of state law”; therefore, the first element of a § 1983 cause of action is clearly satisfied. As such, the crux of our review focuses on whether Landfill was deprived of any “statutory or constitutional right.”
[¶12.] Landfill originally alleged in its complaint in this case that “revocation by [County] was without prior notice to the [Landfill] and was arbitrary, capricious, willful, malicious, and an unconstitutional taking without just compensation, due process and denied the [Landfill] equal protection under both the South Dakota and United States Constitutions and is actionable under [42] USC 1983 and 1985.” The trial court granted summary judgment solely on the grounds that County violated Landfill’s due process rights.[4]
Due Process[¶13.] There are two types of due process which are protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See Macomb, 669 FSupp at 159-60. The first type is procedural due process which provides “'certain substantial rights – life, liberty and property – cannot be deprived except pursuant to constitutionally adequate procedures.’” Id. (quoting Loudermill v. Cleveland Bd. of Educ., 470 US 532, 541, 105 SCt 1487, 1493, 84 LEd2d 494, 503 (1985)). Procedural due process “is flexible and requires only such procedural protections as the particular situation demands.” See Knowles v. United States, 1996 SD 10, ¶79, 544 NW2d 183, 201 (citing Mathews v. Eldridge, 424 US 319, 334, 96 SCt 893, 902, 47 LEd2d 18, 33 (1976); Flockhart v. Wyant, 467 NW2d 473, 476 (SD 1991)).
[¶14.] The second type of due process is substantive due process which provides that “'certain types of governmental acts [violate] the Due Process Clause regardless of the procedures used to implement them.’” Id. at 159-60 (quoting Nishiyama v. Dickson County Tennessee, 814 F2d 277, 281 (6thCir 1987)). It is well settled that the doctrine of substantive due process,
PFZ Properties, Inc. v. Rodriguez, 928 F2d 28, 31-32 (1stCir 1991) (quoting Committee of U.S. Citizens in Nicaragua v. Reagan, 859 F2d 929, 943 (DCCir 1988) (citations omitted)) (emphasis added). Throughout the history of the doctrine of substantive due process, the United States Supreme Court “'has always been reluctant to expand the concept . . . because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.’” See Clark v. City of Hermosa Beach, 56 CalRptr2d 223, 242 (CalCtApp 1996) (quoting Albright v. Oliver, 510 US 266, 271-272, 114 SCt 807, 812, 127 LEd2d 114, 122 (1994)). In recent years, however, courts have begun to “'restrict[] the reach of the protections of substantive due process primarily to liberties “deeply rooted in this Nation’s history and tradition.”’” Id. at 243 (quoting Armendariz v. Penman, 75 F3d 1311, 1318-19 (9thCir 1996) (citations omitted)). These protections under the substantive due process doctrine “'have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.’” Id. at 242 (quoting Albright, 510 US at 271-72, 114 SCt at 812, 127 LEd2d at 122).
[¶15.] The reluctance by many courts to expand the doctrine of substantive due process under a 42 USC § 1983 action has been grounded on the principle that “'the violation of a state statute does not automatically give rise to a violation of rights secured by the Constitution.’” See Creative Env’ts, Inc. v. Estabrook, 680 F2d 822, 833 (1stCir 1982) cert. denied 459 US 989, 103 SCt 345, 74 LEd2d 385 (1982) (quotations omitted) (emphasis added). Despite this principle, we are
presently faced with the trial court’s determination that County’s “arbitrary and capricious” violation of state law automatically amounted to a violation of federal law under 42 USC § 1983; therefore, the trial court allowed the case to proceed solely on the issue of damages. On this appeal, we must determine whether County’s “arbitrary and capricious” denial of a permit under state law automatically constitutes a violation of federal law under § 1983.
[¶21.] Should the trial court determine that the facts support a § 1983 claim, there still remains a question of whether a protected property interest exists to support Landfill’s § 1983 claim. In light of the fact that the trial court made no analysis or discussion as to whether a property right existed or whether such right was violated by County, we will briefly address this issue to assist the court and counsel on remand.
[¶22.] The seminal case on whether a property owner has a constitutionally protected property interest is Board of Regents v. Roth, 408 US 564, 92 SCt 2701,
33 LEd2d 548 (1972). In Roth, the United States Supreme Court stated that:
[¶24.] In the present case, unlike SDDS, Landfill had completed “all applicable county regulations and ordinances,” had already been granted permit approval, and was in the process of requesting reapproval. See Tri County I, 535 NW2d at 765. The SDDS case is further distinguishable because the action in SDDS arose out of the enactment of a referendum by the state of South Dakota; however, in this case, the court was only faced with the denial of the reissuance of the permit. In light of these facts, reliance on SDDS is misplaced.
[¶25.] Landfill argues that it “had a fundamental property right to open a landfill.” Landfill also claims that “[a] person’s right to use his or her land for any legitimate purpose is constitutionally granted” and that a person has the constitutional right to “use and improve his property as he may deem proper, consistent with law.” The determination of Landfill’s arguments is extremely
difficult because they cite a plethora of cases and delve into various topics ranging
from nuisance law to the requirements of a valid zoning ordinance, very little of which is applicable or helpful to the present case. Landfill also argues that it had a property right because “[o]ne has a vested property right once a building permit or special exception has been issued.” Landfill claims that due to the prior approval from County, a property right attached and County could not reject Landfill’s reapproval.
[¶26.] In oral arguments, Landfill contended that this theory was supported by Commission on Pollution Control & Ecology v. Worth James, 568 SW2d 27 (Ark 1978), where a landowner has a fundamental right to use his property. In Worth James, the Commission on Pollution Control and Ecology denied an application for a permit to construct and operate a sanitary landfill. Id. The circuit court reversed the Commission’s decision and directed Commission to issue the permit. Id. at 28. On appeal, Commission claimed that the “proposed site was unsuitable” for a landfill. Id. The Arkansas Supreme Court disagreed with Commission’s argument and held that a permit applicant need not demonstrate need for the landfill site in order to obtain a permit. Id. at 29. While the court did state that a landowner has a “fundamental right to engage in a lawful business,” this right was conditioned on the landowner’s conforming “to whatever regulations may be in existence in the public’s interest.” Id. Reliance on Worth James is misplaced because it does not deal with a § 1983 action, nor does it deal with whether a constitutionally protected property interest existed.
[¶27.] A number of cases have discussed protected property interests. For example, in Bituminous Materials, the court was faced with County’s placement of
restrictions on the issuance of a “temporary equipment placement and operation use permit” to Bituminous Materials, Inc (BMI). 126 F3d at 1069. BMI claimed that the restrictions on BMI’s permit request constituted a violation of their substantive due process rights. The court noted that for BMI to prevail on its substantive due process claim, BMI “must first establish [that] 'a protected property interest to which the Fourteenth Amendment’s due process protection applies.’” Id. at 1070 (citations omitted). In determining that BMI did not have a property interest, the court concluded:
A protected property interest, which is a question of state law, is “'a legitimate claim to entitlement’ . . . as opposed to a mere subjective expectancy.” A claim to entitlement arises, for these purposes, when a statute or regulation places substantial limits on the government’s exercise of its licensing discretion. Thus, the holder of a land use permit has a property interest if a state law or regulation limits the issuing authority’s discretion to restrict or revoke the permit by requiring that the permit issue upon compliance with terms and conditions prescribed by statute or ordinance. “[P]rocedures alone [do not] create a substantive property right.”
Id. (citations omitted) (alterations in original) (emphasis added). See also Villager Pond, Inc. v. Town of Darien, 56 F3d 375 (2ndCir 1995) (holding that a plaintiff has a protected property interest if a “clear entitlement” to the permit exists “and, in turn, a constitutionally protected property interest, exists only when 'the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured’”); DeBlasio v. Zoning Bd. of Adjustment for the Township of West Amwell, 53 F3d 592 (3dCir 1995) (concluding that "whether a property-holder possesses a legitimate claim of entitlement to a permit or approval turns on whether, under state and municipal law, the local agency lacks all discretion to deny issuance of the permit or approval. Any significant discretion conferred upon the local agency defeats the claim of a property interest").
[¶28.] When Landfill sought reapproval, the make-up of the County Commission had changed through the election process. It is obvious that the majority of the newly elected members were opposed to this facility. See Tri County I, 535 NW2d at 764. Prior decisions from an elected official’s predecessor in no way binds the elected official currently occupying the elected position. In Figuly v. City of Douglas, 853 FSupp 381, 384 (DWyoming 1994), the court noted:
One of the most important characteristics of our democratic form of government is the authority of our elected officials to make changes mandated by the electorate. The ability of incoming officials to change policies, procedures, and even key personnel of their predecessors, allows the incoming officials to implement their own policies, those policies desired by the majority of the public who elected them.
[¶29.] In Tri County I, our holding amounts to a finding of violation of South Dakota law. Tri County I does not stand for the fact that a violation of state law amounts to a federal tort claim. More must be established to show that a protected property interest exists, namely, “a lack of discretion on the part of [County] to deny [the permit] issuance.”[6] See Villager Pond, 56 F3d at 379. On remand, the trial court has to determine whether Landfill had a clear entitlement to the permit so that there was no discretion left with County. In other words, it is not whether the denial was “arbitrary or capricious,” but rather, whether County had no discretion to deny this second application.
[¶30.] 2. Whether the trial court erred in awarding Landfill
$193,517.04 in damages plus prejudgment interest.
[¶31.] Based upon or reversal on issue one, we need not discuss this issue.
[¶32.] 3. Whether the trial court erred in awarding Landfill
$359,457.96 in attorney fees.
SABERS, Justice (concurring specially in part and dissenting in part).
[¶42.] 1. On Issue 1, I would reverse on liability and remand for trial.
[¶43.] The trial court incorrectly concluded that our holding in Tri County 1 was conclusive on the question of liability for a § 1983 claim. While there may exist an overlap in the evidence offered to satisfy the “truly irrational” standard, our holding in Tri County 1, that the County acted in an “arbitrary and capricious” manner, does not automatically satisfy this burden. See Chesterfield, 963 F2d at 1104. This issue needs to be determined by the trial court on remand as the right to a jury trial has been waived.
[¶44.] On remand, the trial court has the onerous burden of traversing the path the majority opinion has laid before it. The trial court must be wary because this is not a case of “simple rote allegations that the zoning decision is arbitrary and capricious.” Lemke, 846 F2d at 473 (Arnold, J., concurring). The facts underlying our holding in Tri County 1 must rise to the level of the “truly irrational” standard and not merely an arbitrary and capricious action to create liability for the County in a § 1983 claim. Yet that does not mean our determination in Tri County 1 that the actions of the County were arbitrary and capricious negates the possibility of such a showing. In fact, they substantially support it.
[¶45.] A County is bound by the actions of its duly elected commissioners. See McQuillin, Municipal Corporations § 26.81.20 (3d ed 1995) (discussing the validity of subsequent actions by commissioners). Therefore, a subsequent reversal of a prior decision by newly elected commissioners is clearly wrong, “arbitrary and capricious.” These facts under Chesterfield go a long way to “give rise to a violation of rights secured by the Constitution,” even if it does not do so “automatically.” See Chesterfield, 963 F2d at 1104. Therefore, even if not “automatically” “truly irrational” and subject to summary judgment by the court, it is prima facie evidence for the trial court in this case.
[¶46.] Therefore, to show that a protected property interest exists, it is only necessary for Tri County Landfill to show “a lack of discretion on the part [of Brule County to deny the issuance of the permit].” See Villager Pond, Inc. v. Town of Darien, 56 F3d at 379. The majority’s statement that “[p]rior decisions from an elected official’s successor in no way binds the elected official currently occupying the elected position” is wrong. While it is beyond dispute that incoming officials can change “policies, procedures, and even key personnel of their predecessors . . . and implement their own policies” they cannot ignore a constitutionally protected property interest if it is found to exist. On remand, this is part and parcel of the factual questions to be determined by the court.
[¶47.] Therefore, I concur in the result but not the language of the remand for retrial of Issue 1.
[¶48.] 2. I would reverse Issue 2 on damages based on our determination of Issue 1, require the vacation of the Judgment and remand for retrial.
[¶49.] 3. I would reverse Issue 3 on attorney’s fees based on our determination of Issue 1 and remand for retrial.
[¶50.] The discretionary reasonable attorney’s fees to be awarded as part of the costs may include background reading material, if included as part of the attorney’s fee agreement with the client, Landfill. “It is settled law that attorney fees are allowed in actions . . . when specifically provided by statute or agreement of the parties.” In re Rich, 520 NW2d 63, 69 (SD 1994); Meisel v. Piggly Wiggly Corp., 418 NW2d 321, 325 (SD 1988); Lowe v. Steele Constr. Co., 368 NW2d 610, 614 (SD 1985).
[¶51.] The burden of establishing the fee agreement and the billable time and expense thereunder is upon Landfill, (not Landfill’s attorney as attorney is not a party to the action). “[A] party filing a motion for an award of attorney’s fees bears the burden of proving by a preponderance of evidence its entitlement to such an award.” Hartman v. Wood, 436 NW2d 854, 857 (SD 1989).
[¶52.] 4. I would reverse Issue 4 on prior litigation costs based on our determination of Issue 1, require the vacation of the Judgment, and remand for retrial.
[¶53.] 5. I would affirm the first part of Issue 5 on the right to jury trial because it was waived by County and would not reach the second part of Issue 5 on adding a counterclaim as that issue can best be decided on remand.
[¶54.] 6. I would not reach Issue 6 on the constitutionality of SDCL 34A-
6-103 as it can best be dealt with on remand.
[¶55.] 7. I would not reach Issue 7 concerning judicial notice as it would also be best dealt with on remand.
[¶56.] 8. I would affirm Issue 8 on allowing the challenge to attorney
fees and costs.
[¶57.] 9. I would reverse Issue 9 on administrative capacity of County on the permit reapproval, based on our determination of Issue 1 and remand for retrial.
[¶58.] 10. I would not reach Issue 10 on additional damages because it
can best be resolved on remand.
[¶59.] 11. I would not reach Issue 11 on the admission of numerous exhibits as it is also best dealt with on remand.
[1] . A more detailed rendition of the facts can be found in Tri County I.
[2] . Landfill “was formed in 1992 as a non-profit corporation to develop, construct, and maintain a regional landfill in Brule County.” See Tri County I, 535 NW2d at 761. Landfill’s members included area counties and municipal governments. County was originally a member of Landfill’s association.
[3] . At the time this case arose, SDCL 34A-6-103 provided,
Any application to the [BME] for a permit for a facility for the transportation, storage or disposal of solid waste or medical waste pursuant to this chapter shall include a resolution by the governing body of the county in which the facility is to be located approving the proposed facility. Approval by the county within no more than six months before the issuance of the permit by the [BME] shall be considered as a condition for the issuance of the permit.
See Tri County I, 535 NW2d at 762 n3. The statute was amended in 1996. Among the many changes to the statute, SDCL 34A-6-103 now provides that county approval must be acquired within twenty-four months, rather than six months as was the applicable time period in this case. See SDCL 34A-6-103 (1999); SL 1996, ch 220, § 1.
[4] . When looking at the record on the granting of the partial summary judgment on the issue of liability, the state of the record is quite concerning. A review of the trial transcripts reveals that County had several different attorneys during this case’s tour through our judicial system. At the beginning of the trial on damages, the latest attorney, Steve Johnson, argued that the trial court’s granting of summary judgment on the issue of liability was erroneous and noted that “when the summary judgment was made, prior counsel for the purpose of Brule County only sent a letter to the Court not even a brief.” Based on the record, what was actually provided to the trial court to support its decision is unknown. Further, the trial court’s memorandum notes that in Tri County I, we affirmed the original trial court’s conclusion that “the action of [County] in refusing to pass a resolution reapproving [Landfill’s] proposed facility was arbitrary and capricious.” Based upon this prior opinion, the trial court concluded that liability under § 1983 existed because “[t]hose actions are the same actions that form the basis for the current cause of action and appear controlling.” The trial court’s memorandum merely held that there was liability under § 1983 and no further discussion was conducted by the trial court. Based upon the arguments and authority submitted in support and resistance of the summary judgment and this holding, it makes the task of appellate review difficult. The trial court memorandum also fails to express whether the due process violation was procedural or substantive. Landfill argues both, but does not specify where there was a procedural omission and the main thrust of their argument is on substantive due process.
[5] . In SDDS, South Dakota Disposal Systems (SDDS) brought an inverse condemnation suit against the State of South Dakota based upon an initiative passed by the State which required waste facilities with yearly capacities over 200,000 tons to obtain legislative approval. The initiative had passed while SDDS was petitioning for a five year renewal permit to dispose of 7.75 million tons of municipal solid waste. The SDDS case had made many voyages through both the state and federal judicial systems for nearly a decade. In its last voyage, we noted that the Eighth Circuit had previously held that the State was barred from arguing SDDS had no legitimate entitlement to a permit and no property right. County cites us to the following dicta from SDDS in which this Court discussed SDDS’ property rights:
Although we cannot reach the merits, our analysis of our own case law may have produced a different result. It is a clear principal of takings jurisprudence that, to be compensated, one must be deprived of a portion of the bundle of rights in the property that existed when one obtained title to the property. Lucas v. South Carolina Coastal Council, 505 US 1003, 1027, 112 SCt 2886, 2899, 120 LEd2d 798, 820 (1992). . . .
. . . .
Simply buying the land gave SDDS no right to site Lonetree. It had to successfully complete our permitting process. [citation omitted.]
. . . .
SDDS never finally and successfully completed the permitting process required by our comprehensive regulations. . . .
. . . .
Along with the failure of the regulation process, SDDS was prevented from asserting that it had, as a portion of its “bundle of rights” existing at the time of purchase, a right to operate the [municipal solid waste] facility because of South Dakota’s unique voter involvement and the ever-present possibility of direct citizen intervention, through initiatives and referenda, in controversial topics affecting the welfare of the State. In addition to the various permitting hurdles and judicial review that needed to be undertaken, SDDS was very aware of the strong public opposition to the facility. . . .
SDDS, 1997 SD 114, ¶15 n9, 569 NW2d at 293.
County submits that based upon our dicta in SDDS, Landfill did not have a constitutionally “protected property interest” because they had not yet complied with all of South Dakota’s hydrogeological requirements; specifically, the obtaining of county approval to site a landfill. Finally, County contends that “[s]imply purchasing the land and obtaining a building permit did not give [Landfill] a constitutional right to build a landfill,” they must complete the permitting process required by South Dakota’s comprehensive regulations. We disagree that our dicta in SDDS applies in this case. In SDDS, the permit was void from the beginning; therefore, “SDDS never finally and successfully completed the permitting process required by our comprehensive regulations.” See SDDS, 1997 SD 114, ¶15 n9, 569 NW2d at 293.
[6] . Our decision comports to the decisions from other courts which have “repeatedly held . . . that rejections of development projects and refusals to issue building permits do not ordinarily implicate substantive due process.” See PFZ, 928 F2d at 31 (citing Chongris v. Board of Appeals of Town of Andover, 811 F2d 36, 42-43 (1stCir 1987) cert. denied 483 US 1021, 107 SCt 3266, 97 LEd2d 765 (1987); Chiplin Enterprises v. City of Lebanon, 712 F2d 1524, 1528 (1stCir 1983); Creative, 680 F2d at 829-30). In Chiplin, for example, a developer brought a § 1983 action against the City of Lebanon, New Hampshire, its building inspector and the members of its planning board. 712 F2d at 1525. The First Circuit Court of Appeals emphasized that “'even the outright violation of state law by local officials’ in denying a license does not automatically raise a federal claim.” Id. at 1528 (quotation omitted). Further, the court held that “'[P]roperty is not denied without due process simply because a local planning board rejects a proposed development for erroneous reasons or makes demands which arguably exceed its authority under the relevant state statutes.’” Id. at 1527 (quotation omitted). Finally, “[a] mere bad faith refusal to follow state law in such local administrative matters simply does not amount to a deprivation of due process where the state courts are available to correct the error.” Id. at 1528.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
