Eminent Domain--condemnation for landfill--alternative sites
The trial court erred by granting summary judgment on the issue of the condemnation of a
site for a sanitary landfill in favor of defendant board of commissioners and intervenor waste
disposal company, because: (1) N.C.G.S. § 153A-136(c) requires a board of commissioners to
give careful and thorough consideration to alternative sites for a landfill within the county; and
(2) the record is unclear as to whether the board considered alternative sites.
Fuller, Becton, Slifkin & Bell, by James C. Fuller; and James
F. Hopf and Catherine W. Cralle, for plaintiffs-appellants.
Baddour, Parker, Hine & Orander, P.C., by E. B. Borden Parker
and Philip A. Baddour, Jr., for defendant-appellee.
Parker, Poe, Adams & Bernstein L.L.P., by Jack L. Cozort and
John J. Butler, for intervenor-appellee.
John D. Runkle for amicus curiae Conservation Council of North
Carolina, Inc., Blue Ridge Environmental Defense League, Inc.,
and North Carolina Environmental Justice Network.
WALKER, Judge.
Plaintiffs initiated this action on 19 October 1998 seeking
declaratory and injunctive relief to prevent defendant from
proceeding with the development of a landfill in Greene County
(County). Plaintiffs allege, in part, that the Greene County Board
of Commissioners (Board) failed to properly consider alternative
sites for the landfill as required by N.C. Gen. Stat. § 153A-136(c)(1999). Intervenor Addington Environmental, Inc., now
Republic Services of North Carolina, LLC (Republic), was granted
leave to intervene on 28 October 1998. The trial court denied
plaintiffs' motion for injunctive relief and thereafter granted
summary judgment in favor of both the Board and Republic on 2 June
1999.
Plaintiffs' claims arise from the process undertaken by the
Board to locate a site for a new landfill after Greene County was
forced to close its existing landfill at the end of 1997. After
the Board heard proposals from several private waste disposal
companies, it signed a contract with Republic in August 1997 to
create a landfill in the County. The contract required Republic to
identify areas in the County suitable for the location of the
landfill including “any and all potential development sites.” On
29 December 1997, before the Board voted on the location of the
landfill, Republic secured an option on a tract of land located
adjacent to the existing landfill known as the Bridgers Tract.
On 20 April 1998, the Board received a site study from
Republic which purported to analyze potential sites within the
County. Part I of the study consisted of a “combined exclusionary
map” which ruled out those areas where locating a landfill,
according to Republic, would be imprudent based on ten factors:
geological characteristics; hydro-geological characteristics;
groundwater well proximity; socioeconomic and demographic
information; wetland proximity; proximity to highways and
population centers; effects on endangered species, cultural
resources or natural and historical preserves; availability ofproperty; sufficiency of soil for cover; and airport safety. The
study identified “exclusionary zones” created by the application of
each of the aforementioned factors with the remaining areas in the
County being suitable for a landfill site. Part II of the study
contained a statement that “considered sites in the non-excluded
area” would be evaluated. Although the “combined exclusionary map”
showed other areas which were not excluded in the County, the only
site evaluated in Part II of the study and presented to the Board
was the Bridgers Tract.
In August 1998, Republic presented the Board with a facility
plan which included socioeconomic and demographic information about
the area surrounding the Bridgers Tract. This data was also made
available to the public. On 2 September 1998, the Board published
a legal notice in the local newspaper announcing a public hearing
would be held on 5 October 1998 at which the Board would “consider
alternative sites and relevant socioeconomic and demographic data.”
At the meeting on 5 October 1998, the Board received extensive
public comment, a report by Republic regarding the site selection
process and additional socioeconomic and demographic data.
Included in the presentation was the location of possible
alternative sites considered by Republic; however, each of the
possible alternative sites had been ruled out by Republic as being
within, or partially within, an “exclusionary zone.”
After the public hearing was closed, the Board voted to
approve the Bridgers Tract as the site for the landfill, as
submitted by Republic. Thereafter, on 2 November 1998, the Board
met again and reaffirmed its decision to approve this site. TheBoard stated specifically that it “had [an] additional opportunity
to consider alternative sites, whether or not to approve any site,
and the socioeconomic and demographic data” and that it had
“considered alternative sites.” However, the record does not
reflect whether any new or additional information regarding
alternative sites was received by the Board since its 5 October
1998 meeting.
On appeal, plaintiffs assert that the trial court erroneously
granted summary judgment in favor of the Board and Republic
because the Board failed to properly consider alternative sites as
required by N.C. Gen. Stat. § 153A-136(c)(1999).
Before approving a site for a new landfill that is within one
mile of an existing landfill, N.C. Gen. Stat. § 153A-136(c)(1999)
requires that:
The board of commissioners of a county shall
consider alternative sites and socioeconomic
and demographic data and shall hold a public
hearing prior to selecting or approving a site
for a new sanitary landfill that receives
residential solid waste that is located within
one mile of an existing sanitary landfill
within the State.
However, the statute does not offer guidance as to how a board of
commissioners is to evaluate and consider alternative sites and the
socioeconomic and demographic data associated with those sites.
Plaintiffs argue that Republic never intended to present
alternative sites to the Board since the Bridgers Tract had been
identified months before and an option had been secured on this
tract. Plaintiffs further assert that preliminary evaluations of
this site had been completed in the Spring of 1998 and no other
site was the subject of any such evaluation. In particular,plaintiffs emphasize that all of the alternative sites presented to
the Board were within, or partially within, “exclusionary zones”
and thus not alternatives as contemplated by the statute. As such,
plaintiffs contend that the Board did not comply with the statutory
mandate to “consider alternative sites.”
Defendant counters the statute merely requires that
alternative sites be considered and that interpreting the statute
to require the Board to identify more than one site outside of the
“exclusionary zones” which meets its criteria, based on the ten
factors, would extend the scope of the statute beyond that intended
by the legislature. Further, defendant asserts the Board examined
other sites and the ultimate determination that only one site met
all the criteria did not preclude meaningful consideration of
alternative sites.
In interpreting N.C. Gen. Stat. § 153A-136(c)(1999), we must
determine what the legislature intended by requiring a board of
commissioners to “consider alternative sites.” At the outset, we
note that it is “an accepted rule of statutory construction that
ordinarily words of a statute will be given their natural,
approved, and recognized meaning.” Greensboro v. Smith, 241 N.C.
363, 366, 85 S.E.2d 292, 294 (1955). Because the statute does not
define the phrase “consider alternative sites,” we must construe
this phrase in accordance with its plain meaning to determine the
legislative intent. See Electric Supply Co. v. Swain Electrical
Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). The plain
meaning of “consider” is “to think carefully about” or “to look atthoughtfully.” The American Heritage Co
llege Dictionary 297 (3rd
ed. 1997). The plain meaning of “alternative” is stated as
“allowing or necessitating a choice between two or more things.”
The American Heritage College Dictionary 40 (3rd ed. 1997).
This Court discussed consideration of “alternatives” in the
context of the North Carolina Environmental Policy Act. See Orange
County v. Dept. of Transportation, 46 N.C. App. 350, 265 S.E.2d 890
(1980). Specifically, we addressed Section 4 of the Act which
requires that any State agency, here the Board of Transportation,
“shall include in every recommendation or report . . . a detailed
statement . . . setting forth the following: (d) Alternatives to
the proposed action.” N.C. Gen. Stat. § 113A-4 (1999). In Orange
County, the plaintiffs alleged the State's environmental impact
report filed in conjunction with a proposed highway project failed
to exhibit that the Board of Transportation properly considered
alternatives to the proposed route as required by environmental
regulations. Id. at 383, 265 S.E.2d at 911. In particular,
plaintiffs argued that two alternative routes presented were not
true alternatives because they were going to be built regardless of
whether the proposed route was built. Id. This Court held:
The primary purpose of both the state and
federal environmental statutes is to ensure
that government agencies seriously consider
the environmental effects of each of the
reasonable and realistic alternatives
available to them. The standards for the
content and adequacy of the [Environmental
Impact Study] are articulated in 1 N.C.A.C. §
25.0201 and 23 C.F.R. § 771.18. The courts
have subjected such standards to a “Rule of
Reason” and have not required highwayofficials to consider every one of the
'infinite variety' of 'unexplored and
undiscovered alternatives' that inventive
minds can suggest.” Fayetteville Area Chamber
of Commerce v. Volpe, 515 F.2d 1021, 1027 (4th
Cir. 1975), cert. denied, 423 U.S. 912, 96
S.Ct. 216, 46 L. Ed. 2d 140 (1975)(holding
that statutes requiring consideration of
alternatives must be interpreted reasonably in
light of limited resources).
Id. at 383, 265 S.E.2d at 911-12. In remanding the matter to the
trial court for further determinations, this Court noted that it
“does not sit as a trier of fact.” Id.
In light of these principles, we construe N.C. Gen. Stat. §
153A-136(c)(1999) to require a board of commissioners to give
careful and thorough consideration to alternative sites for a
landfill within the County. Whether or not the Board met this
requirement in the selection of the Bridgers Tract as the landfill
site is a factual question not properly made by this Court.
The Board contends it is entitled to the presumption that it
considered alternative sites. However, we are unable to conclude
from the record before us that the Board considered alternative
sites as required by the statute. Thus, we remand the case to the
trial court for further proceedings consistent with this opinion.
In light of our disposition in this matter, we need not address
the other issues raised in this appeal.
Reversed and remanded.
Judges BIGGS and SMITH concur.
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