Worman Enterprises, Inc. v. The Boone County Solid Waste Management District

Attorneys for Appellant Attorneys for Appellee
Mark R. Waterfill Larry J. Kane
Cynthia M. Kirk Katherine L. Shelby
Indianapolis, Indiana Indianapolis, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 06S01-0306-CV-254
Worman Enterprises, Inc.,
Appellant (Plaintiff below),
v.
The Boone County Solid Waste
Management District,
Appellee (Defendant below).
_________________________________
Appeal from the Boone Superior Court, No. 06D01-0011-CP-390
The Honorable Ora A. Kincaid, III, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 06A01-0206-
CV-202
_________________________________
March 9, 2004
Boehm, Justice.
We hold that the board of a solid waste management district is not
subject to the strict prohibition on ex parte communications that applies
to a court or an administrative agency acting in a purely adjudicatory
role.
Factual and Procedural Background
The Boone County Solid Waste Management District (District) was
created pursuant to Indiana Code Article 13-21. That Article authorizes
the District, inter alia, (1) “to develop and implement a district solid
waste management plan”; (2) “to otherwise do all things necessary for the
reduction, management, and disposal of solid waste; and recovery of waste
products from the solid waste stream”; and (3) “to adopt resolutions that
have the force of law.” Ind. Code § 13-21-3-12 (2002). Worman’s facility
processes trees, brush, leaves, grass, and dirt and sells the resultant
mulch. Worman also processes concrete and bricks and sells the resultant
stone.
At some point before September 1998 the District sued Worman, claiming
that Worman’s facility was an illegal and unpermitted site. In that month,
the District adopted Resolution 98-3, prescribing “certain requirements for
the permitting and operation of solid waste facilities and clean fill sites
within the Boone County Solid Waste Management District.” Worman and the
District then settled the lawsuit on October 6, 1998. The parties agreed,
among other things, that Worman would submit a permit application for a
Long-Term Clean Fill Processing and Recycling Facility. The lawsuit was to
be dismissed only when the permit issued to Worman contained terms mutually
acceptable to Worman and the District. On July 28, 1999, Worman submitted
its application. The Board received comments on the application at its
July and September public meetings. Outside of the public hearings, Board
members viewed the site and engaged in conversations with citizens who were
interested in Worman’s permit.
After its October 11, 2000, meeting, the Board issued Worman a Long-
Term Clean Fill and Recycling Permit. Worman then returned to court
arguing that the District did not have the authority to issue the permit
and that the permitting process was unlawful because of ex parte
communications between the Board and private citizens. Worman also
contended that even if the permitting process was lawful, certain
conditions imposed by the permit were illegal. The District successfully
moved for summary judgment. On appeal, the Court of Appeals held that the
District, as a matter of law, has the authority to regulate Worman’s
facility, but that genuine issues of material fact existed concerning the
propriety of ex parte communications during the permit process.
Accordingly, summary judgment was inappropriate. This Court granted
transfer.
“The standard of review of a grant or denial of a motion for summary
judgment is the same as that used in the trial court: summary judgment is
appropriate only where the designated evidence shows there is no genuine
issue of material fact and the moving party is entitled to a judgment as a
matter of law. All facts and reasonable inferences drawn from those facts
are construed in favor of the nonmoving party.” Corr v. Am. Family Ins.,
767 N.E.2d 535, 537-38 (Ind. 2002) (citing Bemenderfer v. Williams, 745
N.E.2d 212, 215 (Ind. 2001)).
I. The District’s Authority over Solid Waste
Worman argues that because the conduct regulated in the permit is
regulated by the Indiana Department of Environmental Management (IDEM), the
District’s power to regulate Worman’s facility is preempted. Ind. Code §
36-1-3-8(a)(7) (1998). The Home Rule Act significantly expanded the powers
of “units” of local government, but expressly prohibited regulation by
local agencies of conduct already regulated by a state agency. Id. Worman
points out that the Indiana Department of Environmental Management
regulates solid and hazardous waste in Indiana pursuant to Indiana Code
section 13-19-3-1. Worman argues that IDEM “routinely inspects Worman’s
facility,” so the Home Rule Act bars regulation by the District because
IDEM regulates Worman’s facility. The Court of Appeals held that the Home
Rule Act’s prohibitions do not apply to the District because the District
is not a governmental “unit” to which the Home Rule Act applies. I.C. § 36-
1-3-1. As the Court of Appeals noted, a “unit” is defined in the Home Rule
Act as a “county, municipality, or township.” I.C. § 36-1-2-23. Though the
District is none of these, Worman argues that because the members of the
Board are executive officials of Boone County, as required by statute, I.C.
§ 13-21-3-6(a), the District is an arm of the County and is therefore a
“unit” of local government.
We conclude that the Home Rule Act does not prohibit solid waste
management districts from regulating solid waste. The districts are not
technically “units” as the Home Rule Act uses that term. Not all solid
waste management districts are coterminous with a county. The statute
governing solid waste management districts permits counties to join to form
a single solid waste management district. I.C. § 13-21-3-1. If a county
chooses to “designate itself as a county solid waste management district”
or if the county fails to join or designate itself, the county will be
designated by the IDEM commissioner as a county solid waste management
district. Id. The Boone County Solid Waste Management District was
established for Boone County either by designation or by default. Further,
the statute expressly grants solid waste management districts specific
powers that counties already possess, such as the power to adopt
resolutions with the force of law and the power to sue and be sued. I.C. §
13-21-3-12. If the District were the same as the county, these grants of
power would be surplusage. The District’s Board includes executive
officials of municipalities within the District as well as executives of
county government. I.C. § 13-21-3-5(a). Thus, although the District is
coterminous with Boone County, and in that sense the County itself is
designated as the District, the District’s governance is not the same as
the County’s.
Perhaps more importantly, even if the District is viewed as the County
and therefore a “unit,” the specific grant of authority in the Solid Waste
Management District Act governs over the general terms of the Home Rule
Act. Ind. Dep’t Natural Res. v. Newton County, 802 N.E.2d 430, 433 (Ind.
2004). The statute creating and governing Districts specifically grants
authority to regulate solid waste, I.C. § 13-21-3-12, and calls for the
districts to collaborate with IDEM to deal with solid waste issues. See
I.C. § 12-21-5-1 (“Each district shall adopt and submit to the [IDEM]
commissioner for approval a district solid waste management plan.”). If
the Home Rule Act precluded solid waste management districts from
regulating this conduct because IDEM regulates the conduct, then there
would be no purpose to solid waste management districts at all. In sum,
the District is not precluded by the Home Rule Act because it is separate
in organization and power from Boone County and enjoys express authority to
regulate solid waste.[1]
II. Ex Parte Communications
On several occasions while Worman’s permit was pending, members of the
Board communicated with public citizens about the permit. For example, one
member of the Board spoke with citizens who called her home with specific
complaints about Worman’s facility. Citizens also approached that member
at the post office and grocery store to discuss the Worman facility.
Another member viewed the site through binoculars from a neighbor’s home.
Worman argues that these communications between members of the Board and
private citizens regarding its permit application constituted impermissible
ex parte communications that prejudiced the Board against Worman’s
application and violated Worman’s due process rights. The trial court
disagreed and granted the District’s motion for summary judgment. The
Court of Appeals reversed, concluding that the Board’s action was
adjudicatory in nature and that there was a genuine issue of material fact
whether the Board made these communications with the public known and
whether those communications influenced the permitting process.
Black’s Law Dictionary defines ex parte communications as “a generally
prohibited communication between counsel and the court when opposing
counsel is not present.” Black’s Law Dictionary 597 (7th ed. 1999). As
this definition suggests, ex parte communications most often become an
issue if a judge communicates outside the courtroom without disclosing
those communications to everyone involved. These communications are
prohibited. See Ind. Judicial Conduct Canon 3(B)(8); see, e.g., In re
Kern, 774 N.E.2d 878, 879 (Ind. 2002) (judge participated in improper ex
parte communications when he communicated with and aided a father in a
custody dispute without the knowledge of the mother); Garrard v. Stone, 624
N.E.2d 68, 70 (Ind. Ct. App. 1993) (even testimony by a family therapist
could not cure the error when a trial judge initiated communication with
the therapist without informing either party). Due process may be denied
if the parties are not given the opportunity to hear and comment on all of
the evidence considered in their case. See Majors v. State, 773 N.E.2d
231, 234 (Ind. 2002). For the same reason, reliance on ex parte
communications is not allowed in administrative hearings of an adjudicatory
nature. State Bd. of Tax Comm’rs v. Oliverius, 156 Ind. App. 46, 54, 294
N.E.2d 646, 651 (1973). Worman contends that Board’s permitting process
was adjudicatory and therefore the conversations between members of the
Board and the public constituted ex parte communications. Worman posits
that whether the Board was biased by these communications is an issue of
fact that must be reserved for at trial.
Worman’s argument proceeds from a misunderstanding of the permit
process. Ex parte communications are impermissible in adjudicatory
settings, but they are widely accepted and even expected in legislative
settings. We think that the Board is not an adjudicatory body for these
purposes and its permitting process is not analogous to the adjudicatory
function of a court. The Board is a local agency composed mostly of
locally elected officials. I.C. § 13-21-3-5. By statute, the Board is
made up of officials from the county executive, the county fiscal body, the
executives of cities in the District, and members of the legislative bodies
of cities in the District. Id. These officials, by the nature of their
executive or legislative positions, are expected to be open and respond to
the concerns of their constituents. The permitting process is not subject
to the Administrative Orders and Procedures Act (AOPA) because the District
does not have statewide jurisdiction. I.C. §§ 4-21.5-2-3; 4-21.5-1-3.
Agencies subject to the federal Administrative Procedure Act, 5 U.S.C. §§
551, et. seq. (2000), are governed by an explicit statutory prohibition
against ex parte communications in adjudicatory proceedings. 5 U.S.C. §
557(d)(1). But even those agencies, if engaged in permitting or licensing,
perform something of a hybrid function, and communications with industry
officials or others knowledgeable on the policy issues presented by a
license applicant may be appropriate. See Louisiana Ass’n of Indep.
Producers & Royalty Owners v. FERC, 958 F.2d 1101 (D.C. Cir. 1992); Kenneth
Culp Davis & Richard J. Pierce, Jr. Administrative Law Treatise § 8.4 (3d
ed. 1994). Here, although the permitting process has some aspects of
adjudication, it is not purely adjudicatory. Rather, the permitting
process has characteristics of both legislative and adjudicatory roles, and
is most analogous to licensing, a hybrid function properly subject to less
restrictive processes than court or administrative adjudication. See Frank
E. Cooper, State Administrative Law 483 (1965) (“Licensing activities
constitute a distinctive genre, partaking of the characteristics both of
rule making and adjudication.”).
District members are local officials who are expected to receive
citizen input in a less formalized manner than a court proceeding.[2] The
statute does not purport to convert this Board into judges subject to
judicial standards, and includes no restriction on their contacts.
Accordingly, we do not find the permitting process fatally flawed by these
contacts with the public or independent investigations by members. If the
legislature chooses, it may impose more restrictions on the District’s
permitting process. In the absence of a legislative declaration that Board
members are not to engage in ex parte communications, we believe the Board
is sufficiently distinct in composition and function that it is not subject
to the prohibitions against ex parte communications that apply to
administrative agencies under AOPA and to courts under the Code of Judicial
Conduct.
III. Challenged Permit Conditions
In addition to challenging the general authority of the District to
regulate its facility and challenging alleged ex parte communications
between members of the District and members of the public, Worman
challenges several specific conditions of its permit.
As an initial matter, the District contends these claims are waived.
Letters from Worman’s attorney to the District state that various
conditions in the permit are “acceptable.” The District argues that these
statements constitute a waiver of challenges to these provisions.[3] The
District also argues that Worman is estopped from challenging those
conditions because the letters invited the District to issue a permit
containing those conditions.
Worman responds that the letters the District cites were written in an
attempt to reach a compromise regarding the permit pursuant to the
settlement agreement of the first lawsuit. In that lawsuit the District
had sued Worman for operating its facility without a permit. The parties
settled, agreeing that Worman would submit a permit application. The
settlement agreement provided: “The parties agree that if and when permits
as referred to above have been issued to Worman with terms and conditions
mutually acceptable to the District and Worman, then and only then shall
the parties dismiss with prejudice the pending lawsuit.” Worman reasons
that the communications between Worman and the District during the
permitting process were part of efforts to consummate the settlement and
are therefore inadmissible pursuant to Indiana Evidence Rule 408. That
Rule provides that evidence of conduct or statements in negotiations is not
admissible to prove liability, invalidity of a claim, or amount of a claim.
Although Worman stated that conditions in a draft permit were “acceptable”
in the context of trying to reach an agreement, we take this to be nothing
more than an indication that a proposed resolution of one issue was
acceptable if a package could be agreed upon. Worman and the District
never agreed upon a permit with all of the terms of the final permit at
issue here. The purpose of Evidence Rule 408 is to promote candor by
excluding admissions of fact or law. Interim negotiating concessions are
in that category. As a result, these statements are not admissible into
evidence to prove, as the District tries to do, that Worman has waived
them.
A. Permit condition B: Asphalt
Worman first challenges permit provision B which restricts recycling
of asphalt at the facility. This permit condition provides, “[a]sphalt
will be accepted only in reasonable quantities limited to use for on-site
road construction.” Worman argues that there is a dispute as to the
meaning of this condition and that it should be allowed to accept asphalt
for recycling purposes. Worman points out that, in his deposition, the
District’s Administrator said that he believed that in addition to the use
of asphalt for on-site construction, asphalt recycling would be allowed at
Worman’s facility. Worman asserts that because this statement conflicts
with the language of the permit, a genuine issue of material fact exists as
to the meaning of the permit terms. The Administrator does not have the
power to alter the permit by his recollection of it. The terms of the
permit are binding and are clear that asphalt should be used only for on-
site road construction. There is no issue for trial here.
The District promulgated Resolution 98-3 to provide itself and those
it regulates with guidelines for permitting and operating solid waste
facilities and clean fill sites. Worman argues that there is a genuine
issue of material fact as to whether the District has authority under
Resolution 98-3 to limit the use of asphalt to on-site uses because the
Resolution makes no express mention of asphalt. The Resolution requires a
permit application to include a description of the type of material to be
processed at the facility and “[a] detailed description of all processes
used in the handling, sorting, processing, and transportation of the waste
. . . .” The Resolution also contains a provision requiring the District
to review, among other things, whether the permit application satisfies the
requirements of the Resolution. If the application is complete, the
District is directed to grant the permit with whatever conditions that are
necessary to assure compliance with the Resolution. This framework makes
clear that permits will be granted based on the information given in the
application. In its original application, Worman did not list asphalt as a
type of material it would receive, but did explain that it would use
asphalt for on-site construction and roads. Worman did not describe any
other use for asphalt at the facility. In its amended application, Worman
included asphalt as a material that would be accepted, but did not describe
any use for asphalt other than for on-site construction and roads. The
District’s Resolution requires a description of all uses of material in a
permit application. The only use of asphalt Worman described in its permit
application was on-site road construction. The restriction on the use of
asphalt was therefore consistent with the District’s permit application and
with Resolution 98-3.
B. Permit Condition B: “Dimension Lumber”
Worman also challenges the permit condition prohibiting the handling
of “dimension lumber.” The application says, “Worman’s does not accept . .
. normal board lumber . . . .” The District argues that “normal board
lumber” is the same as “dimension lumber” and because Worman’s permit
application said it would not take “normal board lumber,” the District
properly prohibited dimension lumber. Worman does not define dimension
lumber except to say that it is different from “normal board lumber.”
Webster’s Dictionary defines “dimension” as “wood or stone cut to pieces of
specified size.” Merriam-Webster’s Collegiate Dictionary 325 (10th ed.
1993). This is a common enough definition of dimension lumber and is
equivalent to common usages of the term “board lumber.” Worman has not
raised a genuine issue of material fact as to its definition and whether it
can be excluded from the permit.
Worman also argues that this permit provision is unconstitutionally
vague because of lack of clarity of the term “dimension lumber.” Due
process requires that “standards should be written with sufficient
precision in order to give fair warning as to what the agency will consider
in making its decision.” Union Tank Car, Fleet Operations v. Comm’r of
Labor, 671 N.E.2d 885, 889 (Ind. Ct. App. 1996). “The test to be applied
in determining whether an administrative agency regulation can withstand a
challenge for vagueness is whether it is so indefinite that persons of
common intelligence must necessarily guess at its meaning and differ as to
its application.” Taylor v. Ind. Family & Soc. Servs. Admin., 699 N.E.2d
1186, 1192 (Ind. Ct. App. 1998) (quoting Ind. State Ethics Comm’n v.
Nelson, 656 N.E.2d 1172 (Ind. Ct. App. 1995)). Because “dimension lumber”
has a common, generally accepted usage, “cut to pieces of a specified
size,” this condition is specific enough to satisfy due process.
C. Permit Conditions C.9 and D.1: Fire Suppression and Dust Control
Permit condition C.9 calls for the use of fire suppression techniques
and condition D.1 requires the facility to prevent dust from blowing off of
the property onto other land. Worman argues that these conditions
generally apply to composting facilities and because Worman’s facility does
not compost, these conditions are not applicable to its facility. Whether
the facility composts or not, Section 2-5(d)(7) of Resolution 98-3 states
that a permit application must contain a description of the applicant’s
proposed procedures for controlling dust and fire. The provision grants
the District the authority to condition its permit on Worman’s proper
treatment of these problems. Indeed, Worman’s application includes a
section describing its fire prevention procedures. There is no issue for
trial here.
D. Permit Condition A.8: Lack of Compliance as Basis for Revocation of
Permit
Worman next challenges the permit provisions that reserve the
District’s right to revoke the permit if Worman fails to comply with its
requirements. Worman challenges these conditions on the ground that the
Resolution does not define a “material violation” and because the permit
cites “lack of compliance,” not “material violation” as basis for
revocation. The term “material” appears in innumerable statutes, and
revocation for material violation of conditions seems self-evidently within
the District’s authority. This contention is frivolous.
E. Permit Condition D.3: Odors
Worman argues that permit condition D.3 is beyond the scope of the
Resolution and unconstitutionally vague. This condition states “Odors will
be controlled by processing materials quickly minimizing the amount of time
odor causing materials are kept in piles and by introducing woodchips/or
[sic] leaves into green material and maintaining aerobic conditions.”
Section 9-6(a) of Resolution 98-3 provides, “Vectors, dust, odors, and
noise must be controlled at all times at the facility so that they do not
constitute a nuisance or a health hazard.” The District may impose permit
provisions that are reasonable to assure compliance with the Resolution,
and the Resolution contemplates the prevention of odor problems. Nor is
the provision unconstitutionally vague or overbroad. Worman focuses on the
requirement that processing is to be accomplished “quickly” and argues that
this term is impermissibly vague because there is no specific time that
materials are to be kept at the facility. Worman points out that a member
of the District expressed concern that “excessively large” piles of
material at the facility were not in compliance with the Resolution or the
permit. We agree that the provision does not impose any specific time
constraint on the processing of materials. The provision is in
implementation of the Resolution requirement that odors not become a
nuisance or health hazard. It is subject to this standard. To be sure,
one may debate what constitutes a nuisance but the District is not required
to anticipate all means by which this activity could constitute an
unreasonable risk to the health or convenience of others. Worman also
argues that this provision of the permit is not applicable to its facility
because it does not currently have an odor problem. If that is the case,
this condition would have no effect, but that does not render it invalid.
F. Permit Condition A.7: Closure Plan
Worman challenges permit condition A.7 which says, “the applicant will
submit a closure plan by April 01, 2001 and will include procedures to be
used to remove materials for sale or distribution.” Worman claims that
this provision is outside the scope of the Resolution. Section 10-1 of the
Resolution states, “A closure plan similar to that provided for in 329 IAC
10-37 may be required by the Board for clean fill sites, solid waste
processing facilities and incinerators where the proposed solid waste
storage or handling practices may pose a threat to human health and the
environment . . . .” Worman points to testimony of the District’s
Administrator that shutting down the facility would pose no danger to
health. But Worman’s application admits that the nature of the site is
such that a fire hazard is possible. This invokes the Resolution’s
provision for closure plans of facilities that may pose a danger to health
or the environment.
G. Permit Condition A.1 and A.9
Permit conditions A.1 and A.9 were challenged as beyond the scope of
the Resolution, but Worman did not elaborate this argument on appeal, so it
is waived. Ind. Appellate Rule 46(A)(8)(a); see also, Woodruff v. Klein,
762 N.E.2d 223, 229 (Ind. Ct. App. 2002).
H. Permit Conditions A.2, A.6, and D.2: Conditions within the
Jurisdiction of other Agencies
Worman argues that certain permit provisions are improper because they
lie within the exclusive jurisdiction of other governmental bodies. Worman
says that because violation of permit provisions might result in revocation
of the permit, the provisions amount to an attempt to enforce regulations
subject to the exclusive jurisdiction of state agencies.
First, condition A.2 provides, “the Applicant shall construct adequate
ingress and egress lanes on Zionsville Road by April 01, 2001 in order to
comply with conditions of the BZA special exception.” Worman argues that
this is an attempt to regulate that which is in the exclusive jurisdiction
of the Board of Zoning Appeals. The District points to Section 2-5(b)(12)
of its Resolution and argues, “Although the District may not have the
authority to enforce the requirements of the special exception granted by
the BZA, the District clearly has the authority to require Worman to submit
verification of proper zoning status.” We agree.
Next, permit condition A.6 requires Worman to submit a storm water
management plan in accordance with IDEM and Indiana Department of Natural
Resources requirements. Worman challenges this condition as within the
exclusive jurisdiction of IDEM and DNR. The District admits that Worman
has complied with this condition and this issue therefore is moot.
Last, Worman challenges permit condition D.2 which states that
“Compliance with appropriate Occupational Safety & Health Administration
(OSHA) and Indiana Occupational Safety & Health Administration (IOSHA)
noise standards will be required to minimize noise levels.” Section 2-
5(d)(7) of the Resolution provides that a permit application should
describe procedures for controlling noise. The District imposed this
permit provision to provide a standard by which noise will be measured for
purposes of enforcing its Resolution, which expressly allows for noise
control. We see no reason why the District may not adopt standards to
protect the general public that are drawn from other agencies whose concern
is, as in OSHA, a more limited constituency.
IV. Worman’s Equal Protection and Equal Privileges Rights
Worman also objects to certain provisions of the permit arguing that
these provisions violate its rights under the equal protection clause of
the United States Constitution and the equal privileges provision of the
Indiana Constitution. Quoting Phelps v. Sybinsky, 736 N.E.2d 809, 818
(Ind. Ct. App. 2000), trans. denied, that states, “The equal protection
clause guarantees that similar individuals will be dealt with in a similar
manner by the government,” Worman argues that because certain conditions of
its permit are not identical to counterpart provisions in other permits
issued by the District, a genuine issue of material fact exists as to
whether the District has violated its rights under the Equal Protection
Clause of the United States Constitution. Worman’s argument misses the
point. In the same paragraph of Phelps cited by Worman, the Indiana Court
of Appeals went on to explain that the Equal Protection Clause “does not
reject the government’s ability to classify persons or ‘draw lines’ in the
creation and application of laws, but it does guarantee that those
classifications will not be based on impermissible criteria or arbitrarily
used to burden a group of individuals.” Id. Essentially, disparate
treatment by the government, unless involving protected classes of
individuals, must have a rational basis.
Many of Worman’s equal protection arguments fail because Worman has
not shown any actual disparate treatment. For example, Worman argues
permit condition A.4, which requires documentation of the flow of material
through the facility, has not been included in other permits issued by the
District. The District responded that substantially similar provisions
have been included in other permits. In fact, some contain the exact
language used in Worman’s permit. Condition C.7 requires Worman to
document that it has recorded the permit for a clean fill processing and
recycling facility in the Recorder’s Office. The only difference between
this provision in Worman’s permit and similar provisions in other permits
cited by the District is the designation of the facility as a clean fill
and recycling facility. The other facilities are different types of
facilities and they are so designated. Condition D.3 of Worman’s permit
requires Worman to control odor and condition D.5 requires it to control
litter. The District again points out that other permits it has issued
contain the same or substantially similar terms.
Worman also argues generally that other permits for clean fill
facilities do not provide specific guidelines with respect to fire, dust,
odor, or noise, but instead are more generally required to address any
nuisance created. Worman is correct that it has been treated differently
than other permittees, but the permits to which Worman points were issued
before passage of Resolution 98-3. Nothing in the Equal Protection Clause
precludes government from imposing new requirements. City of New Orleans
v. Dukes, 427 U.S. 297, 304 (1976) (failed equal protection challenge to a
grandfather clause that exempted certain businesses from new regulations).
Worman also points to permits for similar facilities that do not require a
closure plan, as required by Worman’s permit. The District explains that
the other facilities at issue either do not accept organic materials or
bury them, so the facilities do not create the fire hazard presented by
Worman’s facility. Finally, Worman argues that other permits do not
contain Worman’s exceptions for asphalt and dimension lumber. But those
exceptions are based on Worman’s permit application. All of these
differences are grounded in a rational basis.
A separate analysis is required under the Equal Privileges Clause of
the Indiana Constitution, but we reach the same result.
Article 1, Section 23 of the Indiana Constitution imposes two
requirements upon statutes that grant unequal privileges or immunities
to differing classes of persons. First, the disparate treatment
accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes.
Second, the preferential treatment must be uniformly applicable and
equally available to all persons similarly situated. Finally, in
determining whether a statute complies with or violates Section 23,
courts must exercise substantial deference to legislative discretion.
Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).
Worman has failed to show disparate treatment in many of the permit
conditions, so the Equal Privileges Clause analysis ends for those
conditions. As to the others, the different treatment accorded Worman is
reasonably related to differences between Worman’s facility and the other
permittees. As a result, Worman has failed to raise a genuine issue of
material fact supporting its claim that its Equal Protection or Equal
Privileges rights have been violated.
Conclusion
We affirm the trial court’s grant of summary judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Indiana Code section 13-21-3-14(a) provides, with certain exceptions,
“. . . the powers of a district do not include the following . . . .”
Effective July 1, 2003, subsection (a) was amended to add a new subsection
(5) that reads: “The power to issue permits for an activity that is already
permitted by a state agency, except as provided by statute.” The parties
have advanced no arguments based on this amendment, which became effective
after the decision of the Court of Appeals in this case, and we express no
opinion as to its effect.
[2] The District’s Board of Directors consists of two people from the
county executive, one person from the county fiscal body, the executive of
the largest city or town in the county, one person who is either the
executive of or a member of the legislative body of a different city or
town, and, inexplicably, “one additional member from the membership of the
county executive.” I.C. § 13-21-3-5(a).
[3] The District claims Worman has waived its right to challenge provisions
A.1, A.2, A.4, A.6, C.7, C.9, D.1, D.2, D.3 and D.5.