Utah's Promontory Point Landfill (PPL) Case Examines Municipal Solid Waste Zoning

Scholars tell us that Aristotle, more than two thousand years ago, defined justice in terms of equality. There was, however, a catch.  “[N]ot for everybody but only for those who are equals,” he said, adding: “The worst form of inequality is to try to make unequal things equal.” The disparities in ancient Greece that surrounded him – a prime example being the social caste system – were seemingly a given.  Fast forward to the modern world where he speaks to us in how courts interpret fundamental entitlements.

The Fourteenth Amendment of the U.S. Constitution confers aspects of citizenship and civil and legal rights on anyone born or naturalized in the United States. Passed by the Senate in 1866 and ratified two years later, the amendment granted U.S. citizenship to former slaves and contained three new limits on states and, by implication, their political subdivisions: their actions must not violate a citizen's privileges or immunities; must not deprive any person of life, liberty or property without due process of law; and must guarantee all persons equal protection of the laws. 

“Equal protection” is the most recognized and most frequently litigated aspect of the amendment.  It figures conspicuously in landmark cases concerning racial discrimination, same-sex marriages and voting.  Equal protection prohibits laws that unreasonably and unfairly favor some individuals, entities or groups over others or that arbitrarily discriminate. A governmental authority must treat those subject to its jurisdiction in the same manner as others in comparable conditions and circumstances.

Situated in the northwestern corner of Utah, Box Elder County contains large areas of barren desert.  Elsewhere, however, forested mountains host an abundance of the eponymous box elder trees and provide a premier birding destination.  

In 2003, some landowners petitioned the County for a conditional use permit to operate a commercial waste disposal facility that would be known as the Promontory Point Landfill (PPL).  Located on the west side of the southern peninsula tip of Promontory Point and close to the Great Salt Lake, the PPL would be accessible by rail and several miles of county road.

The County Planning Commission held a public meeting on the petition in June 2003, and heard some opposition.  Following its discussion with the owners on access, public safety and environmental concerns, the Planning Commission recommended approval. From there, the petition went to the County Commission, which endorsed it by unanimous vote. The PPL, however, remained undeveloped, and, by 2009, the conditional use permit had expired.

Around that time, the County Commission adopted Ordinance 319, which created a Municipal Solid Waste (MSW) zone where all landfills were required to be located.  By then the PPL had a new owner who applied to have the property reclassified as an MSW zone. The Planning Commission discussed the application at a November 2009 meeting where just a single comment was made about the MSW application: an individual asked if re-zoning would have any effect on the value of his property in the area.  

The Planning Commission ultimately voted to recommend that the County Commission approve the rezoning request.  At a hearing before the County Commission in January 2010, another citizen expressed concern about the effects that the proposed zoning change would have

on private property.  After the discussion closed, the County Commission voted to approve the PPL's request for a change to a MSW zone.  In September 2011, the PPL received a permit from

the Utah Department of Environmental Quality (DEQ) to operate a landfill. After receiving this permit, however, the PPL inexplicably did not take steps to obtain another conditional use permit, which it needed to begin operating the landfill.

Moulding Investments owns 2,200 acres of land located approximately eight miles southeast of Snowville and about 60 miles north of the PPL.  (Halfway between the two tracts is Promontory Summit where, on May 10, 1869, the Central Pacific Railroad from the west and the Union Pacific Railroad from the east met to complete the first transcontinental railroad.)  In April 2014, Moulding submitted an application to the County seeking to rezone 225 acres of its property as an MSW zone, and it sought a DEQ permit for a proposed landfill. At that time, the PPL was still not doing business, and the County had only one operating landfill.

During its May 2014 meeting, the Planning Commission considered Moulding's proposed zoning change. During the public comment period, several people raised concerns about drinking water contamination, seismic activity, flooding, local wildlife, the location of the landfill, and traffic to the site.  At Moulding's request, the Planning Commission tabled the application to allow the DEQ to address the concerns raised at the public hearing.

In November 2015, Jeff Hadfield, Jeff Scott, and Stan Summers, who then composed the three-member County Commission, were not the same elected officials who had approved the PPL's earlier zoning application. These commissioners approved Ordinance 414, which overhauled the County's MSW zoning ordinances. Among the changes was redesignating the MSW zone to a Solid Waste (SW) zone.

By mistake, the PPL's zoning classification was not updated when Ordinance 414 was enacted, leaving it still zoned as the obsolete MSW zone. The Planning Commission, at its June 2016 meeting, unanimously approved a rezoning of the PPL to a SW zone, noting that the PPL was "overlooked when the other MSW zones in the county were re-zoned correctly." The County Commission approved it a month later.  The following year, the Planning Commission approved

a conditional use permit (replacing the one that had expired in 2009) for the PPL to operate a landfill.

The DEQ, in 2019, issued Moulding a Class I landfill permit. Despite expressed public concerns about potential environmental and wildlife impacts, state officials concluded that none of these issues warranted denial of the request. Thereafter, the County resumed consideration of Moulding's previously tabled 2014 application for a zone change.  At its August 2020 meeting,

the Planning Commission discussed several potential reasons for denying the application, including the likelihood of flooding in the area, potential safety impacts on the groundwater, public opposition to the possibility of bringing other counties' garbage into the County, and the fact that "the existing capacity of the landfill presently in Box Elder County . . . has a 100-year lifespan." Following this discussion, it unanimously recommended denying Moulding's application based on the following findings:

              public opposition, aquifer recharge area issue, elevation of the watershed being prone

              to flash flooding, it is a known seismic zone, adverse effect on neighboring properties,

              property values and future growth of the area . . . no existing need for an additional

              landfill in Box Elder County[, and] . . . the proposal is not harmonious with the general

              plan and presentation of Box Elder County.

In September 2020, the County Commission met and reviewed the Planning Commission's recommended denial. At that meeting, a commissioner stated that "the Planning Commission doesn't take anything lightly and they do their due diligence when making decisions." Another commissioner noted that he "was at the public hearing and saw the public outcry against" the proposed landfill and that he thought there were "legitimate concerns" with the application. And yet another commissioner pointed out that even if concerns with the application were mitigated, there was "still overwhelming opposition to [Moulding's] landfill."

At the close of the discussion, the commissioners voted unanimously to deny Moulding's application based on the following findings:

               Public opposition; Located in an aquifer recharge area; Location is prone to flash

               flooding; Location is in an area prone to seismic activity; Adverse effects on

               neighboring properties (value, litter, smell, traffic); Not a need (especially when

               considering existing capacity in the county, the adverse impacts, and public

               opposition); [and] Adverse impact (visual, litter) on the I-84 corridor, a corridor

               frequently used by travelers in the western U.S.

In October 2020, Moulding sued the County and Commissioners Hadfield, Scott, and Summers in the First Judicial District Court. The company argued that the County had violated its equal protection rights under both the Utah and the United States Constitutions "under [the] color of state law" by treating Moulding "differently from others similarly situated" – namely, the PPL – and that the County had "done so with ill will and without any rational or legitimate basis."  In short, the County was accused of unjustifiably and unlawfully playing favorites.

          The complaint identified similarities between the proposed Moulding landfill and the PPL, such as that "both landfills [are] located within Box Elder County, both landfills were publicly opposed on similar concerns, and both landfills are not situated within a landfill corridor as required by" ordinance.  Oddly and, as it turned out, consequentially, the complaint also acknowledged the differing chronologies and approval histories of the two projects, noting that the PPL had first sought "a conditional use permit . . . to operate . . . as a commercial landfill" in

2003 and then detailing the history of the zoning approvals that the PPL had obtained through 2016.

 The County filed a motion to dismiss the complaint, arguing that Moulding had not properly alleged "totally illegitimate animus unrelated to the County Commissioners' positions" and that the PPL was not sufficiently comparable or similarly situated as required for an equal protection claim.  

After a hearing, District Judge Spencer D. Walsh issued a written decision granting the County's motion to dismiss on two grounds. He found that Moulding had failed “to identify a comparator that is similarly situated in all material respects" and "to establish that the County acted out of a totally illegitimate animus unrelated to their official duties in denying [Moulding's] application."

With respect to the "similarly situated" element of the claim, Judge Walsh concluded that the PPL was not comparable for several reasons. First, "a decade passed between the time the County Commission considered [the PPL's] application and Moulding's application." Second, the "County Commissioners making the decision were different." Third, when the owners of the PPL applied, there was only one other "landfill operating in the unincorporated County," whereas when Moulding applied, the PPL had already been approved, which the court viewed as a "material distinction." Finally, the court referred to the "vastly different public responses" to the two applications.  As for the alleged hostility, he further found that "Moulding relied on conclusory allegations" and failed to "marshal specific facts that show that the County Commissioners were motivated by the required animus."

On appeal, a three-judge panel upheld the dismissal of the complaint.

 The appellate court did not address whether the complaint had alleged a sufficient show of animosity.  Instead, it focused on whether the complaint adequately explained why Moulding and the PPL were similarly situated.  Under Utah law, similarity is required in all material respects.  That’s a whopping burden in a land use context because each property has unique characteristics.

Moulding's complaint did allege situational similarities between its proposed landfill and the PPL. Indeed, both are located within Box Elder County, both were publicly opposed based on similar concerns, and both do not lie within a landfill corridor as required by a County ordinance.  Despite these alleged similarities, however, the panel cited several key differences. 

The PPL owners first applied for a conditional use permit in 2003, and they received it that year.  Although that permit later expired, the owners bolstered the PPL's readiness to function as a landfill by obtaining necessary zoning changes in 2010 and again in 2016.  By contrast, Moulding did not submit any landfill-related applications until its request for a zone change in 2014.  After the request was tabled, it sat idle with no action until 2020.

 “Thus, while Moulding claims that it is similarly situated to the PPL, the timing alone shows otherwise,” the panel wrote.  “The owners of the PPL had obtained a conditional use permit over a decade before Moulding even applied for a zoning change, and the PPL owners had also obtained zoning changes a decade before the County denied Moulding's zoning request, which is the government action that ultimately led to Moulding's suit.” 

The judges also noted that different decision makers had been involved in making some of the key decisions.  “[W]hile Moulding is now suing Commissioners Hadfield, Scott, and Summers for treating Moulding differently than the PPL has been treated, the earlier decisions to grant the PPL's initial requests were made by different elected officials who may well have had entirely different political agendas,” the appeals court observed. 

 “[T]he PPL stands on different footing from Moulding because the PPL came first,” the panel continued.  “Like the district court, we think it significant that the governmental decisions in question turned on whether to approve a proposed landfill. A local government could of course rationally decide that it should only have a certain number of landfills within its borders, and Moulding does not contend that the County here was constitutionally required to approve every such proposal. Indeed, as noted, one of the findings that the County Commission made in support of its denial of Moulding's zoning application was: ‘Not a need (especially when considering existing capacity in the county . . .).’"

The appellate opinion concluded by noting that the PPL had already been approved for a conditional use permit and for the necessary zoning change before Moulding had even applied for a zoning change.  The two companies were not simultaneously competing for a single permit.

“Simply put, an applicant who has already obtained an approval to conduct an activity is not similarly situated to an entity who begins seeking its own approval later,” the panel wrote. “So here, when Moulding sought the necessary governmental approvals, it was doing so in a climate in which the PPL already had them; but when the PPL sought those approvals, the converse was not true. In this sense, the PPL and Moulding applications were submitted to different County officials in different climates with respect to the number of approved landfills within the County's borders.”   

Moulding Investments, LLC, et al. v. Box Elder County, et al., No. 20220433-CA, Utah Ct. App., Feb. 23, 2024.