Two Supreme Court decisions in the term that ended in June have prompted debate about the role of counties in managing the flow of solid waste, and in financing public improvements by imposing land use permit conditions on developers.
The court struck down state and local waste flow control laws in a May 16 ruling in C&A Carbone v. Clarkstown, N.Y., saying such laws violate the Constitution's commerce clause. The clause prohibits states from erecting barriers to interstate trade unless expressly authorized to do so by Congress.
Flow control authority lets localities force haulers to deliver trash to a designated facility, even when cheaper alternatives are available. Before the Carbone ruling, many counties relied on flow control to ensure a steady waste supply and the revenue to pay debt service on revenue bonds that typically have financed county disposal facilities.
In its June 24 ruling in Dolan v. Tigard, the court held that state and local governments cannot make "exactions" of developers, such as requiring them to donate land or pay impact fees, unless such exactions are "roughly proportional" to the resulting public benefit.
The court struck down the Oregon city of Tigard's attachment of a condition to a permit for property expansion that required the developer, Florence Dolan, to dedicate 10% of her 1.67-acre lot for public use as a greenway and bicycle path. The condition was an unconstitutional "taking" of private land by the government without just compensation, the court ruled.
Counties are playing a major role in negotiating compromise legislation to overturn the Carbone ruling.
Efforts are under way in the Senate and House to pass legislation that would exempt from the ruling flow control laws and contracts already in effect. Solid waste plans also could be included in a grandfather clause bill, which may pass in this session.
But the .prospects are dimmer for passage of legislation that would permit counties to control the future flow of municipal solid waste that is not grandfathered. The National Association of Counties has been negotiating with solid waste companies and other state and local interest groups to craft a compromise that lawmakers have said is needed for action.
Court action expected
One waste company, WMX Technologies Inc., has agreed on a compromise that would exempt existing laws, contracts, and plans, and let governments control the future flow control of non-grandfathered residential and commercial municipal solid waste as long as they set up a competitive process for designating facilities.
But other waste companies such as Browning-Ferris Industries, and powerful groups such as the National Association of Manufacturers and the U.S. Chamber of Commerce, oppose prospective flow control. Environmental groups such as the Sierra Club also oppose it because they believe flow control encourages use of incinerators, landfills, and other disposal options that harm the environment.
At a July 21 markup of flow control legislation by the House Energy and Commerce Committee's transportation and hazardous materials subcommittee, members debated whether counties should have the right to decide how they manage solid waste, including adoption of flow control, or whether the marketplace should dictate where garbage is sent for disposal.
"That's the dilemma of this bill," said subcommittee chairman Rep. Al Swift, D-Wash. The subcommittee passed a measure that would exempt existing flow control laws, contracts, and plans. But the bill does not address future flow control.
"There is a real issue of states' rights here," said Rep. Michael Oxley, R-Ohio, a co-sponsor of the measure along with Swift. The Carbone decision "invited" Congress to take into account the ability of states and localities to determine the best way to manage flow control, he said. Congress needs to give counties "leeway" to make political and economic decisions for which they are accountable, he said.
But Rep. Bill Richardson, D-N.M., who is sponsoring anti-flow control legislation, questioned whether Congress should give municipalities total discretion to continue flow control. Such action "is going to be an invitation to continue some of these damaging practices" that hurt the environment, he said. Richardson did agree, however, that grandfather protection is needed for laws and contracts that relied on previously legal flow control.
Oxley and Rep. Frank Pallone Jr., D-N.J., said there is no evidence that use of flow control affects whether states do a better job of recycling or use incinerators more.
While at least one court challenge has been filed by localities and a waste hauler against New Jersey's flow control regulation, the response to the Carbone decision has been focused in Congress. In contrast, the response to the high court's Dolan decision is expected to play out in the judiciary.
Developers are expected to challenge county requirements that, as a condition for approval of development permits, they donate land or pay impact fees to help build public improvements.
The National Association of Counties told its members to expect numerous disputes over whether permit conditions meet the high court's new test that such conditions be "roughly proportional" to the impact of a development. Previously, counties had used a much looser test of whether a condition had a "rational relationship" to an impact, and the burden was on developers who contested permit conditions to prove the absence of such a relationship.
But the new rough proportionality test places the burden on counties and other local governments to justify any permit conditions, and eliminates sole reliance on a rational relationship as an adequate basis for conditions.
"This is a real important issue for all local governments, and I think people who work in land-use regulation are going to study the case very closely and take it very seriously," said Richard Ruda, chief counsel to the State and Local Legal Center. The center filed a brief in the Dolan case on behalf of the counties group and other state and local interest groups.
Placing the burden on counties for justifying permit conditions is "a very marked departure" from the ordinary rule that government regulation is presumed to be lawful, Ruda said. But Chief Justice William Rehnquist, who wrote the Dolan Please turn to AGENDA Page 11A opinion, made clear that the court was not shifting the burden from developers to localities in disputes involving generally applicable zoning regulations, as opposed to permit conditions, Ruda said.
How the Dolan decision affects counties will depend on the extent to which particular jurisdictions have relied on permit conditions to help build public improvements, Ruda said. For example, many counties have relied on direct negotiations with developers, rather than permit conditions, he said.
Definition needed
A key issue in court challenges probably will be defining rough proportionality. "I am not sure I fully understand the ... test yet," Ruda said. Even though the court said a mathematical calculation is not required. it "still seems to fall back on numbers" in the Dolan case, he said.
Andrew Schwartz. city attorney for San Francisco. said the decision is not expected to significantly affect mature developed jurisdictions, such as San Francisco.
But Schwartz does not believe there is a basis for the rough proportionality test in present or case law, and he is concerned that the Dolan decision has eroded the ability of localities to exercise general police powers to protect public health and safety.
Moreover, if counties that have relied on authority to issue condition permits cannot justify their conditions, they may be forced to seek revenues for improvements from other sources, said Paul Kamenar, executive director of the Washington Legal Center, a nonprofit public interest law and policy center. The center filed a brief in support of the property owner in the Dolan case.
Delays in developments also would mean delays in receipt of tax revenue from projects. Kamenar said.
But even if the Dolan decision results in longer regulatory proceedings, any associated added costs would be passed on to developers m most cases Schwartz said.
