AlaFile E-Notice

21-CV-2011-900039.00 Judge: HON. BURT SMITHART To: LUDDER DAVID ALAN davidaludder@enviro-lawyer.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF CONECUH COUNTY, ALABAMA CITIZENS FOR A CLEAN SOUTHWEST ALABAMA ET AL V. CONECUH COUNTY COMMISS 21-CV-2011-900039.00 The following matter was FILED on 8/6/2013 1:54:59 PM

Notice Date:

8/6/2013 1:54:59 PM

DAVID JACKSON CIRCUIT COURT CLERK CONECUH COUNTY, ALABAMA COURTHOUSE SQUARE EVERGREEN, AL 36401 251-578-2066 david.jackson@alacourt.gov

ELECTRONICALLY FILED 8/6/2013 1:54 PM 21-CV-2011-900039.00 CIRCUIT COURT OF CONECUH COUNTY, ALABAMA DAVID JACKSON, CLERK

IN THE CIRCUIT COURT OF CONECUH COUNTY, ALABAMA CITIZENS FOR A CLEAN SOUTHWEST ALABAMA, BATTLE PAUL, HOWINGTON JAMES A. "BUDDY", HOWINGTON CONNIE ET AL, Plaintiffs, )

) ) ) ) ) V. ) Case No.: ) CONECUH COUNTY COMMISSION C/O ) WENDELL BYRD, CHAIRM, WENDELL BYRD, CONECUH COUNTY ) COMMISSIONER, BYRD WENDELL, ) HUGH BARROW, CONECUH COUNTY ) COMMISSIONER ET AL, Defendants. )

CV-2011-900039.00

ORDER AND FINAL JUDGMENT This matter comes before the Court on Plaintiffs Motion to Supplement Administrative Record (filed April 4, 2013); Conecuh Woods, LLCs Motion to Dismiss Plaintiffs Second Amended Complaint (filed Nov. 8, 2012) and Plaintiffs response thereto; and Plaintiffs Motion for Summary Judgment (filed April 4, 2013) and Defendant Conecuh Woods, LLCs opposition thereto. On May 25, 2011, Plaintiffs Citizens for a Clean Southwest Alabama (CCSA), Paul Battle, George M. Jervey, James Buddy Howington, and William Donald Smith filed a verified complaint against the Conecuh County Commission; Wendell Byrd, Hugh Barrow, Jerold Dean, Leonard

Millender, and D. K. Bodiford, in their official capacities as County commissioners and in their individual capacities; and Conecuh Woods, LLC. Amended and verified complaints were subsequently filed on November 29, 2011 and August 1, 2012. Plaintiffs Second Amended Complaint alleges six counts relating to the Commissions approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility, the execution of the Municipal Solid Waste Landfill Development and Host Fee Agreement by the chairman of the Conecuh County Commission, and a gathering of the commissioners that was not publicly noticed. I. Plaintiffs Motion to Supplement Administrative Record

Plaintiffs Motion to Supplement Administrative Record seeks to add the following six documents to the administrative record of the proceedings of the Conecuh County Commission related to the approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility: CCSA Bates Number

Exhibit A. Agenda - Conecuh County Commission Meeting (April 11, 2011)..................... 4528-4529 Exhibit B. Conecuh County Commission Meeting Minutes (April 11, 2011)....................... 4530-4533 Exhibit C. Conecuh County Commission Working Meeting Minutes (April 11, 2011)....................................................................................................................... 4535-4536 Exhibit D. Conecuh County Commission Meeting Agenda (April 18, 2011) ................................ 4911 Exhibit E. Conecuh County Commission Meeting Minutes (April 18, 2011) ................................ 4912 Exhibit F. Conecuh County Commission Meeting Transcript (April 18, 2011).................... 4913-4919

No parties expressed opposition to the motion. Accordingly, the motion is due to be granted. II. Conecuh Woods, LLCs Motion to Dismiss

Conecuh Woods, LLC asserts that the claims in Plaintiffs Second Amended Complaint should be dismissed under Ala. R. Civ. P. 12(b)(1) based on lack of standing, lack of ripeness, and failure to exhaust administrative remedies. Conecuh Woods, LLC also asserts that certain claims in Plaintiffs Second Amended Complaint should be dismissed under Ala. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. On review of a motion to dismiss for lack of subject matter jurisdiction under Ala. Civ. P. 12 (b)(1), the Court must accept the factual allegations of the complaint as true. Moreover, the Court will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Gulf Beach Hotel, Inc. v. Gulf State Park Auth., 58 So. 3d 727, 730 (Ala. 2010). The appropriate standard of review under [Ala. R. Civ. P.] Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleaders favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. . . . In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. [A] Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Utils. Bd. of the City of Opp v. Shuler Bros., Inc., [Ms. 1111558, June 21, 2013] ___ So.3d ___ (Ala. 2013) (per curiam) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993)) (citations and quotation marks omitted). Motions to dismiss should be sparingly granted. DRC, Inc. v. Great Am.

Ins. Co., 901 So.2d 710, 713 (Ala. 2004). A. Standing

Conecuh Woods, LLC makes a facial challenge to the legal sufficiency of the allegations in Plaintiffs Second Amended Complaint regarding standing. See Ex parte Safeway Ins. Co. of Ala., Inc., 990 So.2d 344, 349 (Ala. 2008) (distinguishing facial and factual challenges to jurisdictional allegations). If a defendant mounts a facial challenge to the legal sufficiency of the plaintiffs jurisdictional allegations, the court must accept as true the factual allegations in the complaint and consider those allegations in the light most favorable to the non-moving party. Id. Conecuh Woods, LLC argues that Plaintiffs lack standing to maintain this action because they have alleged no concrete, actual, or imminent injury. This assertion is based on Conecuh Woods, LLCs argument that Plaintiffs will suffer no concrete injury until after construction of the landfill commences, i.e., sometime after May 31, 2014 when the moratorium established by Ala. Act 2012-434 (signed May 15, 2012) expires and the Alabama Department of Environmental Management (ADEM) can issue a permit to construct and operate the landfill. Ordinarily, a plaintiff must show an actual or imminent concrete and particularized injury in fact - an invasion of a legally protected interest. Ex parte King, 50 So.3d 1056, 1059 (Ala. 2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)); Ala. Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala. 2003) (citing Lujan v. Defenders of Wildlife). However, a plaintiff has standing to enforce procedural rights, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his

standing. Lujan v. Defenders of Wildlife, 504 U.S. at 573 n. 8. Accord, Sierra Club v. Johnson, 436 F.3d 1269, 1276-77 (11th Cir. 2006). The [Lujan] Court indicated that these procedural requirements are enforceable because disregarding them could impair a plaintiffs non-procedural, concrete interest. Id. Plaintiffs Second Amended Complaint alleges that CCSA is a nonprofit corporation the purpose of which is to foster, develop, and promote an organization on behalf of the citizens of southwest Alabama that will ensure and protect the environment and natural resources from any harmful, destructive manmade facility, including landfills, located or proposed to be located in Southwest Alabama; that members of CCSA live and own property in Conecuh County and use, enjoy, and desire to preserve and protect the environment and natural resources of Conecuh County, including floodplains and adjacent lands, endangered and threatened species and their habitats, archeological and historical resources, surface waters, ground waters, wetlands, and air quality; that the design, location, and size of the proposed Conecuh Woods landfill may restrict the flow of the 100-year flood, reduce the temporary water storage capacity of the floodplain, and result in washout of solid waste to the injury of members of CCSA who own property along Escambia Creek downstream of the proposed Conecuh Woods landfill; that the design, location, and size of the proposed Conecuh Woods landfill may destroy or modify habitat and jeopardize the continued existence or reduce the population of endangered or threatened species known or believed to occur in Conecuh County, specifically the red cockaded woodpecker, wood stork, and Louisiana quillwort and deprive members of CCSA of the opportunity to enjoy observing such species; that the structural

integrity of the proposed Conecuh Woods landfill may be damaged by nearby active faults and result in the release of solid waste and leachate into the environment to the injury of the environmental interests of CCSAs members; that the proposed landfill will cause the discharge of pollutants into waters of the State, including wetlands, and may degrade wetlands to the injury of the environmental interests of CCSAs members; that the operation of the proposed Conecuh Woods landfill may result in litter, dust, noise and odor to the injury of the environmental interests of CCSAs members; that the design of the proposed Conecuh Woods landfill may not be adequate to resist horizontal acceleration in lithified earth material resulting from seismic activity and may compromise containment structures, including liners, leachate collection systems, and surface water control systems and may cause the release of solid waste and leachate into the environment to the injury of the environmental interests of CCSAs members; that the location of the proposed Conecuh Woods landfill may damage or destroy archaeologically or historically sensitive areas to the injury of the interests of CCSAs members in preserving and protecting archeological and historical resources; and that the operation of the proposed landfill may result in litter, dust, noise and odor to the injury of the environmental interests of CCSAs members. Second Amended Complaint 1. The Complaint further alleges that Plaintiff Paul Battle is a Conecuh County taxpayer and member of CCSA; that he owns property and a house approximately thirteen hundred feet from the proposed Conecuh Woods landfill property line; that he believes that the construction and operation of the Conecuh Woods landfill will reduce the value of his property; that he believes the landfill will create offensive noises and odors that will diminish his enjoyment of his house and the surrounding environment and natural resources; and that he fears the

landfill will contaminate groundwater and his well. Second Amended Complaint 2. The Complaint alleges that Plaintiff James A. Buddy Howington is a Conecuh County taxpayer and member of CCSA; that he owns and farms property that is approximately 4.8 miles from the proposed Conecuh Woods landfill property line; that he believes the landfill will create offensive odors that will diminish his enjoyment of the environment and natural resources on his property; that he believes that the increased truck traffic on Highway 41 that will result from operation of the landfill will make his travel on Highway 41 more hazardous; that active faults or seismic activity could damage the structural integrity of the proposed landfill and result in the release of leachate into groundwater that could contaminate his well and may require that he treat the water or discontinue farming. Second Amended Complaint 3. The Complaint alleges that James Billy Smith is a Native American, member of the Poarch Band of Creek Indians, and member of CCSA; that he believes archeological and historical resources related the Poarch Band of Creek Indians exist on the property where the proposed Conecuh Woods landfill is to be located; and that the construction of the proposed landfill will disturb or destroy these resources. Second Amended Complaint 4. The Complaint alleges that Plaintiff George M. Jervey is a Conecuh County taxpayer and member of CCSA; that he lives approximately three miles from the proposed Conecuh Woods landfill property line; that he believes construction and operation of the proposed Conecuh Woods landfill will diminish the value of his property; that he believes operation of the proposed Conecuh Woods landfill will result in unsightly litter on the highways, especially Highway 41; and that he believes the proposed Conecuh Woods landfill may contaminate groundwater and his well. Second Amended Complaint 5. The Complaint

alleges that Plaintiff William Donald Smith is a Conecuh County taxpayer and member of CCSA. Second Amended Complaint 6. These allegations identify the concrete interests that could be impaired by disregard of the procedural requirements of the Conecuh County Solid Waste Management Plan. Plaintiffs have also identified the procedural requirements of the Conecuh County Solid Waste Management Plan that the Conecuh County Commission and commissioners adopted pursuant to Ala. Code 1975, 22-27-47 but failed to comply with. Second Amended Complaint 47-49. These procedural requirements are designed to protect the threatened concrete interests of Plaintiffs. For example, the Exclusionary Guidelines of Section 12.2 of the Conecuh County Solid Waste Management Plan incorporate State landfill siting criteria which are designed to protect the functions of floodplains; protect endangered species and their habitats; prevent damage to the structural integrity of the landfill caused by faults and seismic impacts; protect archeological and historical resources; protect water quality; and protect wetlands and other ecological resources. Second Amended Complaint 47. These procedural requirements are enforceable by Plaintiffs without the necessity of showing that an injury to their concrete interests is imminent or certain because disregarding any of them could later - perhaps years later - impair Plaintiffs non-procedural, concrete interests. See Lujan v. Defenders of Wildlife, 504 U.S. at 572 n. 7 (plaintiff has standing even though he cannot establish with any certainty that the procedural requirements will cause a license to be withheld or altered, and even though the project will not be completed for many years). Plaintiffs allegations related to their procedural injuries and threatened concrete interests are

sufficient to withstand a motion to dismiss under Ala. R. Civ. P. 12(b)(1). Accordingly, Conecuh Woods, LLCs Motion to Dismiss for lack of standing under Ala. R. Civ. P. 12(b)(1) is due to be denied. B. Ripeness

Conecuh Woods, LLC argues that Plaintiffs claims are not ripe for judicial review because certain administrative processes specifically ADEMs determination to issue or deny a permit for the landfill, are not yet completed and that delay would allow for completion of those processes, would avoid abstract or hypothetical determinations by the Court, and would result in no hardship to Plaintiffs. Alabama courts have ruled that [l]egal issues relating to host-government approval may be ripe for review, regardless of whether all necessary permits have been obtained. Ala. Disposal Solutions-Landfill, L.L.C. v. Town of Lowndesboro, 837 S.2d 292, 298 (Ala. Civ. App. 2002) (citing Fitzjarrald v. City of Hunstsville, 597 So.2d 1378 (Ala. Civ. App. 1992)). Simply put, [i]t does not matter that ADEM has not issued a permit yet. ADEMs decision is separate and apart from the citys decision. Ala. Disposal Solutions-Landfill, L.L.C., 837 So.2d at 298 (quoting Fitzjarrald, 597 So.2d at 1380). See Lujan v. Defenders of Wildlife, 504 U.S. at 572 n. 7 (although a proposed action and its effects may not materialize for years, a person whos concrete interests may ultimately be affected by the agency action has the right to challenge the agencys non-compliance with procedural mandates immediately). Accordingly, Plaintiffs claims are ripe for review and Conecuh Woods, LLCs Motion to Dismiss under Ala. R. Civ. P. 12(b)(1) is due to be denied.

C.

Exhaustion of administrative remedies

Conecuh Woods, LLC asserts that Plaintiffs have no right to sue the Conecuh County Commission or the commissioners before completion of ADEMs administrative review, including the administrative appeal authorized by Ala. Code 1975, 22-22A-7(c). Although Alabama recognizes the doctrine of exhaustion of administrative remedies, Alabama also recognizes an exception to the rule where there is a defect in the power of the agency to act in any respect. City of Graysville v. Glenn, 46 So.3d 925, 929 (Ala. 2010) (quoting Jefferson County v. Johnson, 333 So.2d 143, 149 (Ala. 1976)). ADEM is authorized to issue a landfill permit if it determines that the permit application submitted to ADEM complies with Ala. Admin. Code Div. 335-13. Ala. Admin. Code r. 335-135-.03(2)(b). However, ADEM may not consider an application for a new or modified permit for a facility unless such application has first received approval by the affected unit of local government having an approved solid waste management plan. Ala. Code 1975, 22-27-48(a). To ensure compliance with the latter prohibition, Ala. Admin. Code r. 335-13-5-.02(1) requires that an applicant submit evidence of [h]ost government approval, as provided in the Ala. Code 1975, 22-27-48. No statute or rule authorizes ADEM to review the merits of a host governments approval of a proposed landfill. Thus, there is a defect in ADEMs power to act with respect to the Conecuh County Commissions approval of the proposed landfill and exhaustion of the ADEM permitting scheme is not required. Moreover, Ala. Code 1975, 22-22A-7(c) authorizes the Alabama Environmental

Management Commission to conduct a de novo review of any administrative action of the department (i.e., ADEM), and to modify, approve, or disapprove such administrative action. (Emphasis added). An administrative action is defined in Ala. Code 1975, 22-22A-3(8) as [t]he issuance, modification, repeal or denial of any permit, license, certification, or variance, or the issuance, modification or repeal of any order, notice of violation, citation, rule or regulation by the department (i.e., ADEM). (Emphasis added). Thus, the administrative review authorized by Ala. Code 1975, 22-22A-7(c) is limited to review of actions by ADEM. The Alabama Environmental Management Commission has no power to review and modify, approve or disapprove a determination made by a local governing body under Ala. Code 1975, 22-27-48 to approve a solid waste disposal site. Thus, there is a defect in the Alabama Environmental Management Commissions power to act with respect to the Conecuh County Commissions approval of the proposed landfill and exhaustion of the appeal permitted by Ala. Code 1975, 22-22A-7(c) is not required. Accordingly, Plaintiffs are not required to exhaust these remedies and Conecuh Woods, LLCs Motion to Dismiss under Ala. R. Civ. P. 12(b)(1) is due to be denied. D. Failure to state a claim upon which relief can be granted

Finally, Conecuh Woods, LLC asserts that Plaintiffs fail to state a claim upon which relief can be granted. Specifically, Conecuh Woods, LLC argues that the due process requirements of Constitution of Alabama 1901 do not demand that an official government interest not benefit from a decision, particularly if neutral judicial review is thereafter available. Furthermore, Conecuh Woods, LLC argues that Plaintiffs have an adequate remedy that precludes resort to the extraordinary writ of

certiorari. Plaintiffs allege in Count V that the probability of actual bias on the part of the Conecuh County Commission and commissioners was too high to be constitutionally tolerable when their approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility would yield hundreds of millions of dollars in revenue for the County and the Commission and commissioners were responsible for raising and expending revenues. Second Amended Complaint 20-22, 43, 81. Not only is a biased decision maker constitutionally unacceptable, but our system of law has always endeavored to prevent even the probability of unfairness. In pursuit of this end, various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome, . . .. Withrow v. Larkin, 421 U.S. at 46-47 (citations omitted). The United States Supreme Court has held that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable when the decision will financially benefit the public fisc over which the decision maker also has responsibility. Tumey v. Ohio, 273 U.S. 510, 532-533 (1927); Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972). The Alabama Supreme Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution. Ex parte Dragomir, 65 So.3d 388, 390 (Ala. 2010) (quoting Ex parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala. 2010), in turn quoting Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002)). Moreover, [a]n unbiased and impartial decision-maker is

one of the most, if not the most, fundamental of requirements of fairness and due process. Stallworth v. City of Evergreen, 680 So.2d 229, 233-234 (Ala. 1996). In addition, subsequent neutral judicial review does not cure the due process violation by the Commission or commissioners. See Ward v. Village of Monroeville, 409 U.S. at 61-62 (Petitioner is entitled to a neutral and detached judge in the first instance); Concrete Pipe and Prod. of Calif., Inc. v. Constr. Laborers Pension Trust for S. Calif., 508 U.S. 602, 618 (1993) (Even appeal and a trial de novo will not cure a failure to provide a neutral and detached adjudicator). The Court concludes that Plaintiffs Count V states a claim upon which relief can be granted. Conecuh Woods, LLC also asserts that a petition for common law writ of certiorari is not a remedy available to Plaintiffs because an adequate remedy is provided in Ala. Code 1975, 22-22A-7 (c). As discussed in Part II. C. above, the remedy provided in Ala. Code 1975, 22-22A-7(c) cannot address the merits of the Conecuh County Commissions approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility and does not provide Plaintiffs with an adequate remedy. Accordingly, Conecuh Woods, LLCs Motion to Dismiss under Ala. R. Civ. P. 12(b)(6) is due to be denied. III. Plaintiffs Motion for Summary Judgment

On a motion for summary judgment, the Court must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is

to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present substantial evidence creating a genuine issue of material fact -evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. Ala. R. Civ. P. 56; Miller Trucking, LLC v. APAC Mid-South Inc., [Ms. 1110724, Jan. 11, 2013] ___ So.3d ___ (Ala. 2013). Like any other fact essential to recovery, the plaintiff has the burden of proving standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At the summary-judgment stage, a plaintiff asserting standing cannot rest on mere allegations in the complaint, see Dover Historical Socy v. City of Dover Planning Commn, 838 A.2d 1103 (Del. 2003), but must prove standing through specific facts set forth by affidavit or other evidence. Grayson v. AT & T Corp., 15 A.3d 219 (D.C. 2011). Byrd v. MorEquity, Inc., 94 So. 3d 378, 379 (Ala. Civ. App. 2012). A. Count I

Count I of Plaintiffs Second Amended Complaint seeks a common law writ of certiorari to review the Conecuh County Commissions approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility. Standing As discussed in Part II. A. above, a plaintiff has standing to enforce procedural rights, so long

as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. Lujan v. Defenders of Wildlife, 504 U.S. at 573 n. 8. The injury to a plaintiffs concrete interests need not be imminent or certain. See id. at 572 n. 7 (plaintiff has standing even though he cannot establish with any certainty that the procedural requirements will cause a license to be withheld or altered, and even though the project will not be completed for many years). Plaintiffs have filed affidavits from Paul Battle, James A. Buddy Howington, George M. Jervey, William Donald Smith, James Billy Smith, Mark Bailey, Vaughn Stough, Avalisha Fisher (flood expert), and Diane Hite (property devaluation expert) attesting to the concrete interests of Plaintiffs that are threatened by the landfill, including reduced property values, offensive noises and odors that will diminish enjoyment of property, unsightly litter on the highways, the destruction of archeological and historical resources of Native Americans, the degradation of wetlands, the destruction or modification of habitat of endangered species and reduction in populations of endangered species, and soil erosion or solid waste washout from alterations of the 100-year floodplain. Thus, Plaintiffs have demonstrated threatened injuries in fact to their concrete interests. Plaintiffs have also shown that the procedures set forth in the Conecuh County Solid Waste Management Plan are designed to maximize the protection of public health and the environment and ensure traffic safety, protect sensitive land uses, ensure the adequacy of public services and improvements necessary to support the facility (e.g., water, sewer, electric, etc.), ensure the availability of police, fire, medical and emergency response services, minimize waste transportation costs, and minimize adverse impacts on property values. As discussed below, Plaintiffs have

demonstrated that the Conecuh County Commission arbitrarily and capriciously disregarded or failed to follow the procedures set forth in the Conecuh County Solid Waste Management Plan when considering the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility. The Court has the power to redress Plaintiffs threatened injuries by setting aside the Commissions approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility. Accordingly, Plaintiffs have standing to seek a common law writ of certiorari. Conecuh Woods, LLC presents no affidavits or deposition testimony contradicting Plaintiffs claims of threatened injuries to their concrete interests. Rather, Conecuh Woods, LLC argues that Plaintiffs injuries to their concrete interests are neither imminent nor certain and are therefore insufficient to support standing. Conecuh Woods, LLC fails to acknowledge however, that in a procedural injury case such as this one, the injury to a plaintiffs concrete interests need not be imminent or certain. Lujan v. Defenders of Wildlife, 504 U.S. at 573 n. 7 (plaintiff has standing even though he cannot establish with any certainty that the procedural requirements will cause a license to be withheld or altered, and even though the project will not be completed for many years). Accordingly, the Court finds that Plaintiffs have standing to present the claim in Count I. Merits On common-law certiorari review, the circuit courts scope of review is limited to determining if the subordinate tribunals decision is supported by legal evidence and if the law was correctly applied to the facts. In addition, the court is responsible for reviewing the record to ensure that the fundamental rights of the parties, including the right to due process, has not been violated. Questions

of fact or weight or sufficiency of the evidence will not be reviewed on certiorari. Franks v. Jordan, 55 So.3d 1218, 1220-21 (Ala. Civ. App. 2010). Accord, Fox v. City of Huntsville, 9 So.3d 1229, 1232 (Ala. 2008). [T]he circuit courts review on a common-law writ of certiorari [is] limited to the record before the [subordinate tribunal]. Id. 1. Exclusionary Guidelines

Section 12.2 of the Conecuh County Solid Waste Management Plan provides:

EXCLUSIONARY GUIDELINES To maximize the protection of public health and the environment, regulations require that solid waste facilities meet specific State and Federal siting requirements for the particular type of facility in question (see Article III, Section 11 for general siting requirements). When considering approval of solid waste facilities, the County Commission should consider how well the planned facility addresses these requirements. Should a proposed facility not meet these siting requirements, it should be excluded from further consideration by the Commission. [] The State landfill siting requirements are found at Ala. Admin. Code r. 335-13-4-.01. These requirements address the siting of landfills in or near wetlands, archeologically or historically sensitive sites, endangered species and their habitats, floodplains, seismic impact zones, active faults, and other requirements. The Conecuh County Commission contracted with Engineering Service Associates, Inc. (ESA) to perform an independent review and evaluation of the proposed landfill application submitted to the Commission by Conecuh Woods, LLC on January 21, 2011. ESA explained that [t]he purpose of this review was to determine if the proposed facility, a municipal solid waste (MSW) landfill, satisfies specific State and Federal siting requirements (Exclusionary Guidelines) for

the particular type of facility being proposed. If the proposed facility met the siting requirements, then an evaluation of the proposed project was to be performed using the required Comparative Evaluation Criteria method as described in the CCSWMP. ESA submitted a Review and Evaluation of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility Conecuh County, Alabama dated February 24, 2011 to the Conecuh County Commission, and a supplemental letter-report dated April 4, 2011 to Richard D.C. Nix, Conecuh County Attorney. For most of the State siting requirements referred to in the Exclusionary Guidelines, ESA simply summarized the limited information provided in the Application, and concluded that ADEM would ensure that the State siting requirements were met when Conecuh Woods, LLC submitted a permit application to ADEM. This was so with respect to State siting requirements for wetlands, floodplains, seismic impact zones, unstable areas, archaeologically and historically sensitive sites, endangered species, and active fault areas. Throughout this evaluation process, it was clearly ESAs position that the Conecuh County Commission was not required to ensure that the proposed landfill complied with the State siting requirements referenced in the Exclusionary Guidelines. The Conecuh County commissioners relied on ESAs evaluation. Four commissioners expressed the view that they were not responsible for evaluating the State siting requirements referenced in the Exclusionary Guidelines. Rather, they claimed, that was the responsibility of ADEM. The Conecuh County Commission failed to consider how well the planned facility addresses the State siting requirements. In doing so, the Commission arbitrarily failed to apply the

Exclusionary Guidelines to the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility. Accordingly, Plaintiffs Petition for Common Law Writ of Certiorari is due to be granted and the Commissions April 18, 2011 approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility by the Conecuh County Commission is due to be set aside. 2. Wetlands

Among the State siting requirements is the following: Landfill units including buffer zones shall not be permissible in wetlands, beaches or dunes. Ala. Admin. Code r. 335-13-4-.01(2)(c) (emphasis added). It is uncontradicted that the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility (Figure 1-4) shows that disposal cells 2, 3, 5, and 6 will be located in and displace wetlands, rather than completely avoid wetlands as required by Ala. Admin. Code r. 335-13-4-.01(2)(c). Thus, the Application conclusively demonstrates that the State siting requirement for wetlands is not met. Should a proposed facility not meet these siting requirements, it should be excluded from further consideration by the Commission. Conecuh County Solid Waste Management Plan 12.2. The Conecuh County Commission however, disregarded the uncontradicted evidence of non-compliance with the siting requirements and approved the Application. The Conecuh County Commissions determination that the State siting requirement for wetlands was met is contrary to the uncontradicted evidence, arbitrary and capricious, and not in accord with the Conecuh County Solid Waste Management Plan. Accordingly, Plaintiffs Petition for Common Law Writ of Certiorari is due to be granted and the Commissions April 18, 2011 approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility by the Conecuh County Commission is due to be set aside. 3. Evaluation of public comments

Ala. Code 1975, 22-27-48(a) provides in part: Any determination by the local governing body of the proposed issuance of or modification of a permit for a new or existing solid waste management site or the proposal to contract for any services described in the solid waste management plan, shall be made in a public meeting only after public notice of such application or proposal and an opportunity for public comment is provided. (Emphasis added). Obviously, this provision contemplates that local governing bodies will not only receive comments from the public, but will also evaluate those comments. In addition, Section 13.2 of the Conecuh County Solid Waste Management Plan describes some of the public participation procedures that the Conecuh County Commission must observe: Public input into the evaluation and approval process can take the form of public testimony in the public hearing (see above for a description of public hearings that may take place) and/or written comments or questions to be addressed by the governing body. Minutes of the public hearing and testimonies shall be transcribed or recorded. Testimony and written comments/questions will be evaluated by the governing body, which shall provide written or published responses. (Emphasis added). This provision mandates that the Commission evaluate public comments. It is undisputed that on April 7, 2011, the attorney for CCSA submitted a 29-page analysis of the Exclusionary Guidelines and Comparative Evaluation Criteria and evidence related thereto to the Conecuh County Attorney, Richard Nix. These comments addressed all of the State and federal siting requirements referenced by the Exclusionary Guidelines and all of the Comparative Evaluation Criteria of the Conecuh County Solid Waste Management Plan. It is also undisputed that on April 15, 2011, the attorney for the Town of Repton submitted comments to the Conecuh County Commission. These comments addressed several of the State and federal siting requirements referenced by the Exclusionary Guidelines and several of the Comparative Evaluation Criteria of the Conecuh County

Solid Waste Management Plan. It is undisputed that, in the course of this litigation, the Conecuh County Commission produced to Plaintiffs attorney over 5,000 pages of documents, Bates stamp numbered 0001 through 5544, which had accumulated in connection with the requirements imposed on a governing body considering a landfill application as set forth in Ala. Code 1975, 22-27-48. It is undisputed that the April 7, 2011 and April 15, 2011 comment letters were not among the documents represented to be included in the administrative record. The Commission did not subsequently produce a Bates stamped copy of either the April 7, 2011 or April 15, 2011 comment letters. Nor did the Commission assert by affidavit or otherwise that the April 7, 2011 and April 15, 2011 comment letters were included in the administrative record and evaluated by the Commission prior to rendering a decision on the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility, despite not being Bates stamped. The omission of the April 7, 2011 and April 15, 2011 comment letters from the administrative record considered by the Commission prior to rendering a decision on the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility violates the procedural requirements of Ala. Code 1975, 22-27-48(a) and Section 13.2 of the Conecuh County Solid Waste Management Plan that the Commission evaluate all public comments. The statutory procedures set out in 22-2748(a) were not followed by the Commission and approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility was unlawfully obtained. See Fitzjarrald, 597 So.2d at 1379-80 (If appellants can establish that the statutory procedures set out in

22-27-48(a) were not followed, then the local approval was unlawfully obtained . . .). Accordingly, Plaintiffs Petition for Common Law Writ of Certiorari is due to be granted and the Commissions April 18, 2011 approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility by the Conecuh County Commission is due to be set aside. C. Count II

Count II of Plaintiffs Second Amended Complaint alleges that the Conecuh County Commission unlawfully approved the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility because it did not make a pertinent document (i.e., the Municipal Solid Waste Landfill Development and Host Fee Agreement) available for public inspection prior to the April 18, 2011 determination on the Application as required by Ala. Code 1975, 22-27-48(a). Standing Plaintiffs standing under Count II is based on their right to enforce the procedural requirements of Ala. Code 1975, 22-27-48(a) and Conecuh County Solid Waste Management Plan 13.2 which are designed to protect their threatened concrete interests that are the ultimate basis of their standing. The standing analysis is the same as described above for Count I. Accordingly, the Court finds that Plaintiffs have standing to present the claim in Count II. Merits Ala. Code 1975, 22-27-48(a) establishes the procedures that governing bodies must follow to approve or disapprove proposed solid waste management sites within their jurisdictions. These include public notice of the application or proposal and an opportunity for public comment . . ..

The public notice must identify a contact person from whom interested persons can obtain additional information and can review copies of both the local plan and the application or proposal to be considered. In addition to the application and local plan, 22-27-48(a) requires that [a]ll pertinent documents shall be available for inspection during normal business hours at a location readily accessible to the public. Accord, Conecuh County Solid Waste Management Plan 13.2. It is undisputed that the Municipal Solid Waste Landfill Development and Host Fee Agreement was an important consideration of the Conecuh County Commission in deciding whether to approve the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility at the April 18, 2011 special meeting of the Commission. It is also undisputed that the Municipal Solid Waste Landfill Development and Host Fee Agreement effectively revised the Application. Thus, the Agreement was clearly a pertinent document. It is undisputed that the Conecuh County Commission did not make the Municipal Solid Waste Landfill Development and Host Fee Agreement available for public inspection prior to the March 10, 2011 public hearing on the Application. It is also undisputed that the Conecuh County Commission did not make the Municipal Solid Waste Landfill Development and Host Fee Agreement available for public inspection on or prior to April 18, 2011, the date on which the Commission approved the Application. Conecuh Woods, LLC asserts that the Commission was under no duty to make available a pertinent document that did not exist prior to April 18, 2011. This assertion fails for two reasons. First, it is undisputed that a preliminary draft of the Agreement existed on April 13, 2011 when the

Conecuh County Attorney initiated negotiations on a host fee agreement and presented a draft to Conecuh Woods, LLC. That preliminary draft could have been made available to the public immediately. Second, it is undisputed that a final draft of the Agreement signed by Conecuh Woods, LLC existed prior to the commencement of the April 18, 2011 special meeting of the Conecuh County Commission, and could have been made available to the public prior to or even during the meeting. The Court finds that the Commission did not make a pertinent document (i.e., the Municipal Solid Waste Landfill Development and Host Fee Agreement) available for public inspection prior to the April 18, 2011 determination on the Application as required by Ala. Code 1975, 22-27-48(a). The statutory procedures set out in 22-27-48(a) were not followed and the local approval was unlawfully obtained. See Fitzjarrald, 597 So.2d at 1379-80 (If appellants can establish that the statutory procedures set out in 22-27-48(a) were not followed, then the local approval was unlawfully obtained . . .). Accordingly, Plaintiffs are entitled to summary judgment on Count II and the Commissions approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility is due to be set aside. D. Count III

Count III of Plaintiffs Second Amended Complaint alleges that the Municipal Solid Waste Landfill Development and Host Fee Agreement is invalid and unenforceable because the Conecuh County Commission did not approve it by a majority vote as required by Ala. Code 1975, 11-3-7. Standing The Alabama Supreme Court has said that a party has standing where, among other things,

there is an actual, concrete and particularized injury in fact - an invasion of a legally protected interest. Working v. Jefferson County Election Commn, 2 So.3d 827, 832 (Ala. 2008) (internal quotation marks and citations omitted). In a long line of decisions this Court has recognized the right of a taxpayer to challenge, either as unconstitutional or as not conforming to statute, the expenditure of public funds by county officers. Id. (quoting Zeigler v. Baker, 344 So.2d 761, 763 (Ala. 1977)). [T]he right of a taxpayer to sue is based upon the taxpayers equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation. Id. at 833 (quotation marks and citations omitted). Plaintiffs William Donald Smith, George M. Jervey, Paul Battle and James A. Buddy Howington assert taxpayer standing to obtain a declaration determining whether the Municipal Solid Waste Landfill Development and Host Fee Agreement is valid and enforceable. It is undisputed that these Plaintiffs are taxpayers in Conecuh County. It is undisputed that the Agreement obligates the Conecuh County Commission to fully support and cooperate with Conecuh Woods, LLC in obtaining all permits, licenses and approvals necessary to construct and operate the landfill; to oppose enactment or adoption of any statute, ordinance, resolution, rule or regulation that is more stringent than those imposed by ADEM or EPA; to oppose the assessment or levy of any taxes, fees, riders, etc. for severance or like use of the landfill capacity; to oppose the assessment or imposition of any surcharges to the revenue of the landfill; and to oppose the placement of any governmental revenue collection function or authority on the landfill owner/operator. In addition, it is undisputed that the Agreement contemplates that Conecuh County will provide future County services to the landfill,

including law enforcement, fire protection, and the personnel and equipment needs related thereto. Finally, it is undisputed that the Agreement requires that Conecuh County process complaints received by the County from citizens or other interested parties regarding the landfill, including forwarding those complaints to Conecuh Woods, LLC; providing Conecuh Woods, LLC with information reasonably necessary to allow the Company to respond to any complaints; and to receive reports from Conecuh Woods, LLC regarding the circumstances and actions taken. If the Agreement is invalid, expenditures necessary to fulfill these obligations will be a misappropriation of public funds by County officers and Plaintiffs William Donald Smith, George M. Jervey, Paul Battle and James A. Buddy Howington will be liable to replenish the public treasury for the deficiency which would be caused by the misappropriation of funds. It is well settled that a taxpayer, in certain situations, has standing to challenge a proposed illegal expenditure and to restrain or enjoin any such expenditure. Beckerle v. Moore, 909 So.2d 185 (Ala. 2005) (emphasis added; citations omitted). Plaintiffs need not, as Conecuh Woods, LLC suggests, wait for an illegal expenditure to occur to obtain a declaratory judgment on the validity of the Agreement and expenditures thereunder. [O]ne of the purposes of the Declaratory Judgment Act is to render practical help in ending a controversy that has yet to reach the stage where legal relief is immediately available and to enable parties between whom an actual controversy exists or those between whom litigation is inevitable to have the issues speedily determined when a speedy determination would prevent unnecessary injury caused by the delay of ordinary judicial proceedings. Stated another way, declaratory-judgment actions are designed to set controversies to rest before they

lead to repudiation of obligations, invasion of rights, and the commission of wrongs. Harper, III v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala. 2003). [A] party should not be forced to wait until the event giving rise to the claim occurs before a court may determine the partys rights and obligations. Id. Accordingly, the Court finds that Plaintiffs William Donald Smith, George M. Jervey, Paul Battle and James A. Buddy Howington have standing to present the claim in Count III. Merits Ala. Code 1975, 11-3-7 provides: A majority of members serving on a county commission shall constitute a quorum. A judge of probate or chair elected countywide shall be considered a member of the county commission for purposes of determining a quorum. No ordinance, resolution, policy, or motion shall be voted on and approved by a county commission unless a quorum is present in the meeting chamber while the vote is taken and the matter is approved by an affirmative vote of the majority of the members present and voting, unless otherwise required by Alabama law. It is undisputed that the purpose for and agenda of the special meeting held by the Commission on April 18, 2011 was noticed as Deliberate And Vote on Landfill Application. Admin. R. Excerpts at Conecuh County 000303. It is undisputed that the notice of the special meeting did not mention the Municipal Solid Waste Landfill Development and Host Fee Agreement. And, it is undisputed that the only item actually voted on at the special meeting on April 18, 2011 was the application of Conecuh Woods, LLC, to develop a municipal solid waste landfill here in Conecuh County. Minutes of Conecuh County Special Meeting of April 18, 2011, CCSA4912. It is undisputed that the Conecuh County Commission did not discuss the Agreement at the April 18, 2011

special meeting of the Commission. Transcript of Conecuh County Special Meeting of April 18, 2011, CCSA4913-4919. It is undisputed that the Conecuh County Commission did not vote to approve the Agreement during the April 18, 2011 special meeting of the Commission. Thus, the Commission, as a collegial body, did not vote to approve the Agreement. Nevertheless, it is undisputed that the chairman of the Conecuh County Commission signed the Municipal Solid Waste Landfill Development and Host Fee Agreement on April 18, 2011. Conecuh Woods, LLC argues that the Municipal Solid Waste Landfill Development and Host Fee Agreement is not within the scope of Ala. Code 1975, 11-3-7 because it is neither an ordinance, resolution, policy, nor motion and therefore does not require a vote. It is beyond question that the Conecuh County Commission can take official action only when a quorum is present and only after an affirmative vote of the majority of the members present and voting approves such action. No such vote took place on the Municipal Solid Waste Landfill Development and Host Fee Agreement at the April 18, 2011 special meeting or any other meeting. Conecuh Woods, LLC also argues that Ala. Code 1975, 11-3-20(b)(2) authorizes the Commission chair to execute the Municipal Solid Waste Landfill Development and Host Fee Agreement because the Commission voted on and approved the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility. Section 11-3-20(b)(2) authorizes the chair to serve as signatory for the county commission on all appropriate documents, such as resolutions, orders, contracts, or directives, as are necessary to carry out the actions of the county commission. In the present case however, the Commissions action on the Application for Approval of Proposed

Conecuh Woods Solid Waste Management Facility does not require that a host fee agreement be executed to carry out that action. Indeed, host government approval of a disposal site under Ala. Code 1975, 22-27-48 can be granted without any host fee agreement whatsoever. Thus, the Municipal Solid Waste Landfill Development and Host Fee Agreement was not necessary to carry out the approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility. Accordingly, Ala. Code 1975, 11-3-20(b)(2) does not authorize the chair of the Commission to sign the Municipal Solid Waste Landfill Development and Host Fee Agreement without a vote of the Commission approving the Agreement. The Court finds that the chair of the Conecuh County Commission did not have authority to sign the Municipal Solid Waste Landfill Development and Host Fee Agreement on behalf of the Commission absent express approval of the Agreement by the Commission. Accordingly, Plaintiffs are entitled to summary judgment on Count III and the Agreement is due to be declared invalid and unenforceable. E. Count IV

Count IV of Plaintiffs Second Amended Complaint alleges that the Conecuh County Commission and the commissioners deprived Plaintiffs of their right to seek a common law writ of certiorari reviewing the April 18, 2011 determination on the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility based on a complete record, including public hearing testimony and comments/questions on the Municipal Solid Waste Landfill Development and Host Fee Agreement, in violation of the Due Process Clause of Art. I, 6 of the Constitution of

Alabama 1901. Standing In a proceeding seeking a common law writ of certiorari, judicial review is based on the record created by the governmental body. E.g., Fox, 9 So.3d at 1232. Thus, judicial review of the Commissions decision on the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility is limited to the administrative record compiled by the Commission which includes testimony and written comments/questions on the Application submitted by the public. Plaintiffs assert that the Municipal Solid Waste Landfill Development and Host Fee Agreement revised the Application and that they were not afforded an opportunity to present testimony or submit written comments/questions to the Conecuh County Commission regarding those revisions. Thus, the administrative record subject to judicial review in this action does not include public comment on the revisions made to the Application by the Agreement. The Conecuh County Commissions and the commissioners failure to afford Plaintiffs an opportunity to present testimony or submit written comments/questions on the revisions to the Application has denied Plaintiffs the right to obtain judicial review of the Commissions approval of the Application based on a complete record. As discussed below, this denial is an injury to a constitutionally-protected property interest. Plaintiffs injury can be redressed by the Court issuing an order setting aside the Commissions approval of the Application. Accordingly, the Court finds that Plaintiffs have standing to present the claim in Count IV. Merits

It is undisputed that the Conecuh County Commission received testimony and written comments/questions on the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility that was filed with the Commission on January 21, 2011. It is undisputed that the Municipal Solid Waste Landfill Development and Host Fee Agreement effectively revised the Application. It is also undisputed that the Commission never afforded the public the opportunity to present testimony or submit written comments/questions regarding the Municipal Solid Waste Landfill Development and Host Fee Agreement. Alabama law recognizes the right of persons to seek a common law writ of certiorari to review alleged arbitrary and capricious governmental decisions absent a right of appeal or other adequate remedy. Fox, 9 So.3d at 1232. Accord, Ex parte Boykins, 862 So.2d 587, 593 (Ala. 2002). See Ala. Code 1975, 1-3-1; 6-6-642. Such right is a property interest protected by the Due Process Clause of Art. I, 6 of the Constitution of Alabama 1901. See e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (state-granted rights to use adjudicatory procedures are a species of constitutionally protected property that may not be deprived without constitutionally adequate due process procedures); Ex parte Dragomir, 65 So.3d at 390 (This Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution) (quoting Ex parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala. 2010), in turn quoting Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002)). In a proceeding seeking a common law writ of certiorari, judicial review is based on the record created by the governmental body. E.g., Fox, 9 So.3d at 1232. The record of the Conecuh

County Commissions consideration of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility does not include public comment on the revisions made to the Application by the Municipal Solid Waste Landfill Development and Host Fee Agreement. Certiorari review of issues concerning the revisions to the Application have been impaired, foreclosed or extinguished by the failure of the Conecuh County Commission and commissioners to afford Plaintiffs an opportunity to present testimony and submit comments/questions on the Municipal Solid Waste Landfill Development and Host Fee Agreement. Thus, the Conecuh County Commission and commissioners have deprived Plaintiffs of a constitutionally-protected property interest without providing Plaintiffs with any due process whatsoever. The Court finds that the Conecuh County Commission and commissioners deprived Plaintiffs of their right to seek a common law writ of certiorari reviewing the April 18, 2011 determination on the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility based on a complete record, including public hearing testimony and comments/questions on the revisions made to the Application by the Municipal Solid Waste Landfill Development and Host Fee Agreement, in violation of the Due Process Clause of Art. I, 6 of the Constitution of Alabama 1901. Accordingly, Plaintiffs are entitled to summary judgment on Count IV and the Commissions approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility is due to be set aside. F. Count V

Count V of Plaintiffs Second Amended Complaint alleges that, because of the substantial

amount of money to be paid to Conecuh County by Conecuh Woods, LLC under the terms of the Municipal Solid Waste Landfill Development and Host Fee Agreement, the Conecuh County Commission and commissioners deprived Plaintiffs of their right to an impartial determination of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility and impartial evaluation of public comments in violation of the Due Process Clause of Art. I, 6 of the Constitution of Alabama 1901. Standing Citizens of a county have a vital interest in the disposal of solid wastes within the county, in the site approved for their disposal, and in contracts awarding the right to operate a landfill between the county and a private corporation. Browns Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala. 1992). These interests are constitutionally protected interests. Id. Citizens are entitled to constitutionally sufficient procedural due process when protected interests are to be adversely affected by government action. As discussed below, the Conecuh County Commission and the commissioners approved the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility in violation of constitutionally sufficient procedural due process requirements. This approval will cause Plaintiffs to suffer threatened injuries to their concrete interests. The Court may redress Plaintiffs injuries by entering an order setting aside the approval of the Application. Accordingly, the Court finds that Plaintiffs have standing to present the claim in Count V. Merits

It is undisputed that the Conecuh County Commission was responsible for approving the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility. It is also undisputed that the Conecuh County Commission is responsible for Conecuh County finances and that the Conecuh County Commission and the commissioners have an interest in and responsibility for ensuring the financial well-being of Conecuh County. It is also undisputed that immediately prior to granting approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility on a 3-2 vote, the Conecuh County Commission and Conecuh Woods, LLC completed negotiations on the Municipal Solid Waste Landfill Development and Host Fee Agreement which is estimated to yield Conecuh County $283,057,240 during the landfills expected 63-year life if the Company is granted approval of its Application . . .. [P]rocedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when ones life, liberty, or property interests are about to be affected by governmental action. Browns Ferry Waste Disposal Ctr., Inc., 611 So.2d at 228. It is well settled law that due process must be observed by all boards . . .. Ex parte Case, 925 So.2d 956, 960 (Ala. 2005). Accord, Withrow v. Larkin, 421 U.S. 35, 46 (1975). Plaintiffs have a vital interest in the disposal of solid wastes within the county and in the site approved for their disposal and in the contract made between the County and Conecuh Woods, LLC. Plaintiffs are among the citizenry affected by the proposed landfill. Art. I, 6 of the Constitution of Alabama 1901 protects these interests against deprivation without adequate notice and hearing. See Browns Ferry Waste Disposal Ctr., Inc., 611 So.2d at 228; Ex parte Lauderdale County, 565 So.2d 623, 627 (Ala. 1990).

Procedural due process requires more than a hearing. An unbiased and impartial decisionmaker is one of the most, if not the most, fundamental of requirements of fairness and due process. State Tenure Commn v. Page, 777 So.2d 126, 131 (Ala. Civ. App. 2000) (quoting Stallworth v. City of Evergreen, 680 So.2d at 233-234). The right to a fair hearing before an impartial tribunal or board is an important fundamental right. Id. Not only is a biased decision maker constitutionally unacceptable, but our system of law has always endeavored to prevent even the probability of unfairness. In pursuit of this end, various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome, . . .. Withrow v. Larkin, 421 U.S. at 46-47 (citations omitted). The United States Supreme Court has held that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable when the decision will financially benefit the public fisc over which the decision maker also has responsibility. Tumey v. Ohio, 273 U.S. at 532-533; Ward v. Village of Monroeville, 409 U.S. at 60. See Ex parte Dragomir, 65 So.3d at 390 (This Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution) (quoting Ex parte Excelsior Fin., Inc., 42 So.3d 96, 101 (Ala. 2010), in turn quoting Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002)). Under the undisputed facts of the present case, the probability of actual bias on the part of the Conecuh County Commission and county commissioners was too high to be constitutionally tolerable.

The Court finds that the April 18, 2011 approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility by the Conecuh County Commission was the result of unconstitutional procedure. Accordingly, Plaintiffs are entitled to summary judgment on Count V and the Commissions approval of the Application for Approval of Proposed Conecuh Woods Solid Waste Management Facility is due to be set aside. G. Count VI

Count VI of Plaintiffs Second Amended Complaint alleges that the County commissioners conducted a meeting of the Conecuh County Commission in the Conference Room at the Conecuh County Courthouse prior to 9:00 A.M. on April 18, 2011 and disregarded the requirements in Ala. Code 1975, 36-25A-3 for proper notice of the meeting in violation of the Alabama Open Meetings Act. Standing Standing to enforce the Alabama Open Meetings Act is restricted to the following persons, organizations and officials: Enforcement of this chapter may be sought by civil action brought in the county where the governmental bodys primary office is located by any media organization, any Alabama citizen, the Attorney General, or the district attorney for the circuit in which the governmental body is located; provided, however, that no member of a governmental body may serve as a plaintiff in an action brought against another member of the same governmental body for an alleged violation of this chapter. Ala. Code 1975, 36-25A-9(a). Plaintiffs William Donald Smith, George M. Jervey, and James A. Buddy Howington are

residents, property owners, and taxpayers in Conecuh County, Alabama. Accordingly, these Plaintiffs have statutory standing to enforce the Alabama Open Meetings Act.

Merits By agreement of the parties, the summary judgment hearing conducted by the Court on June 20, 2013 also served as the preliminary hearing required under Ala. Code 1975, 36-25A-9. Section 36-25A-9 provides: (b) In the preliminary hearing on the complaint, the plaintiff shall establish by a preponderance of the evidence that a meeting of the governmental body occurred and that each defendant attended the meeting. Additionally, to establish a prima facie case the plaintiff must present substantial evidence of one or more of the following claims: (1) That the defendants disregarded the requirements for proper notice of the meeting pursuant to the applicable methods set forth in Section 36-25A-3. *** (c) If the court finds that the plaintiff has met its initial burden of proof as required in subsection (b) at the preliminary hearing, the court shall establish a schedule for discovery and set the matter for a hearing on the merits. It is undisputed that a gathering of the commissioners in the conference room of the Conecuh County Courthouse occurred on April 18, 2011 immediately prior to the scheduled special meeting of the County Commission. Plaintiffs have failed, however, to meet their initial burden of proving by a preponderance of the evidence that the gathering of commissioners constituted a meeting, as defined in Ala. Code 1975, 36-25A-2(6), of the Conecuh County Commission. Accordingly,

Plaintiffs Motion for Summary Judgment on Count VI is due to be denied and Count VI is due to be dismissed. IV. Conclusion

Upon consideration of the pleadings, motions, briefs, affidavits, answers to interrogatories, admissions, depositions, administrative record excerpts, other evidentiary materials, and arguments of counsel made at hearing on the motions on June 20, 2013, the Court hereby ORDERS, ADJUDGES, AND DECREES as follows: A. B. C. D. The Court has jurisdiction of the subject matter of this action; Plaintiffs Motion to Supplement Administrative Record is GRANTED; Conecuh Woods, LLCs Motion to Dismiss is DENIED; Plaintiffs Petition for Common Law Writ of Certiorari in Count I of their Second

Amended Complaint is GRANTED; E. Plaintiffs Motion for Summary Judgment on Counts I through V of their Second

Amended Complaint is GRANTED; F. The Commissions April 18, 2011 approval of the Application for Approval of

Proposed Conecuh Woods Solid Waste Management Facility is hereby SET ASIDE; G. The Municipal Solid Waste Landfill Development and Host Fee Agreement executed

by Conecuh Woods, LLC and the Chairman of the Commission on April 18, 2011 is hereby declared to be INVALID and UNENFORCEABLE; H. Plaintiffs Motion for Summary Judgment on Count VI of their Second Amended

Complaint is DENIED and Count VI is DISMISSED WITH PREJUDICE; and I. This order is a final judgment as to each and every claim of the Plaintiffs against each

of the Defendants, and there is no just cause for delay of entry of final judgment. Each party shall pay its own costs and attorneys fees of the action preceding the entry of this judgment.

DONE this 6th day of August, 2013. /s/ HON. BURT SMITHART CIRCUIT JUDGE