Richard S. Griffin; Griffin Farm & Landfill, Inc. v. Town of Unionville, North Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1409
RICHARD S. GRIFFIN; GRIFFIN FARM & LANDFILL, INC.,
Plaintiffs - Appellants,
v.
TOWN OF UNIONVILLE, NORTH CAROLINA,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:05-cv-00514-RJC-CH)
Argued: May 13, 2009 Decided: July 27, 2009
Before NIEMEYER, Circuit Judge, C. Arlen BEAM, Senior Circuit
Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation, and Joseph F. ANDERSON, Jr.,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: T. Jonathan Adams, HAMILTON, MOON, STEPHENS, STEELE &
MARTIN, PLLC, Charlotte, North Carolina, for Appellants. Thomas
Norfleet Griffin, III, PARKER, POE, ADAMS & BERNSTEIN, LLP,
Charlotte, North Carolina, for Appellee. ON BRIEF: Mark R.
Kutny, Travis W. Moon, HAMILTON, MOON, STEPHENS, STEELE &
MARTIN, PLLC, Charlotte, North Carolina, for Appellant Griffin
Farm & Landfill, Inc.; R. Keith Johnson, R. KEITH JOHNSON, P.A.,
Stanley, North Carolina, for Appellant Richard S. Griffin. G.

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Nicholas Herman, THE BROUGH LAW FIRM, Chapel Hill, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Richard Griffin appeals the district court’s grant of
summary judgment in favor of the Town of Unionville, North
Carolina (“the Town”). We affirm.
I.
In 1992, Griffin began operating a demolition landfill,
more accurately now known as a “land clearing and inert debris”
(LCID) landfill, pursuant to a permit issued by the Union County
Health Department. The permit authorized the LCID landfill to
accept waste, limited to stumps, limbs, leaves, concrete, brick,
untreated wood, asphalt, uncontaminated earth, sand or rocks.
In 1993, Griffin obtained “prior approval” from Union County
(the county) authorizing him to expand his landfill by ten
acres. This addition was authorized as a “construction and
demolition” (C & D) landfill. Griffin did not begin operating
the C & D landfill at that time, but received the prior local
approval so that he could get a state permit, which was
required. In 1995, the state natural resources department
issued Griffin an operational permit for the C & D installation.
This permit was amended and renewed by the state a number of
times through the year 2005.
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In January 1997, the county approved Griffin’s application
to expand his landfill again. In the summer of 1997, the county
changed its land use ordinance to require that a landfill
operator obtain a special use permit (SUP) from the county, in
addition to the required state permits. So Griffin applied for
a SUP and included all of his property—his then-existing LCID
and C & D landfills, as well as the proposed expansion—in the
SUP application. In November 1997, the county approved
Griffin’s request for a SUP. The SUP allowed construction of a
“demolition landfill.”1 The county land use ordinance in effect
at that time defined “demolition landfill” to include “debris
associated with the construction or demolition of housing or
buildings” and expressly prohibited industrial waste. The SUP
also required that any modifications to proposed uses on the
property covered by the SUP be pointed out to the county in
writing, as required by the county land use ordinance. This
ordinance provided that insignificant or minor changes were
1 Part of the difficulty with reciting the facts in this
case is that the county continued to use the term “demolition
landfill,” while the state administrative regulations changed
what was known as a demolition landfill to an LCID landfill in
1993. At the time the SUP was granted, the county’s definition
of demolition landfill allowed waste authorized by the state-
defined LCID and C & D landfills. J.A. 399; 15A N.C. Admin.
Code 13B.0101(11), (22), & (23); 15A N.C. Admin. Code
13B.0532(8). When amended by the county in 1998, the term
“demolition landfill” exceeded what was allowed in an LCID and C
& D landfill by allowing industrial solid waste.
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permitted without formal written approval, but any changes of
significance had to be approved in the same manner as a new
application for a SUP. It is undisputed that Griffin has never
applied to the county for an amendment or modification to the
1997 SUP. Following issuance of the SUP in November 1997,
Griffin retained an engineering firm to perform work on the
property and incurred expenses.
At a June 1998 County Planning Board meeting, Griffin asked
the county to amend the definition of a demolition landfill in
the county’s land use ordinance to allow for the disposal of
nonhazardous industrial solid waste. The matter was considered
further and approved at a July 1998 public hearing. The crux of
the instant dispute is Griffin's assertion that this amendment
was intended to retroactively apply to Griffin's 1997 SUP.
Throughout this time, Griffin continued to have the engineering
firm prepare the landfill expansion for waste.
In November 1998, the Town revived its corporate charter,
making it an incorporated municipality within the county of
Union and in the state of North Carolina. The current and
proposed landfills were included within its boundaries.
Nonetheless, because the Town did not have a land use ordinance,
the Town conferred jurisdiction on the county to regulate zoning
and land use issues until October 2003 when the land use
ordinance adopted in June 2003 became effective.
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In July 1999, Griffin applied to the state for a permit
authorizing him to operate an industrial solid waste landfill on
his property. In response, in September 2001, the state
informed Griffin that in order to operate the proposed landfill,
pursuant to North Carolina General Statute §§ 130A-294(b1)(3) &
(4), he would need local government zoning approval, and would
need to obtain a franchise from the local government.
Griffin accordingly sought to obtain a local franchise, but
at that time, as previously noted, the Town did not have a land
use ordinance or a local franchise ordinance, having temporarily
ceded its authority on these issues to the county. Moreover,
although the county had a land use ordinance, it did not have a
franchise ordinance either, and thus Griffin never was able to
obtain a franchise from the county.
In March 2003, Griffin asked the Town council to adopt a
franchise ordinance. The Town council passed a "Solid Waste
Franchise Ordinance for the Town of Unionville" in June 2003.
The franchise ordinance allowed for C & D and LCID landfills
only. Also in June 2003, the Town adopted a Land Use Ordinance,
to be effective October 1, 2003. The definition of “demolition
landfill” in the Town’s land use ordinance was the same
definition as the county’s 1998 amended definition—it authorized
the inclusion of industrial solid waste in a demolition
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landfill, creating a conflict with the franchise ordinance which
only allowed C & D and LCID landfill waste within the Town.
Griffin and the Town entered into a franchise agreement in
February 2004. The franchise agreement, in keeping with the
ordinance, only authorized Griffin to operate landfills
accepting C & D and LCID waste, not industrial solid waste.
After obtaining the franchise, Griffin also confirmed, by way of
a letter from the Town's land use administrator, that his 1997
county-issued SUP was still valid in the Town. Armed with these
two pieces of information (the franchise and the presumably
valid SUP), Griffin applied for and received an amended permit
from the state for the continued operation of his C & D landfill
in March 2005.
At this point, Griffin had official state authorization to
operate a C & D landfill and though the record is not entirely
clear on this point, he either did not need state authorization
for an LCID, or he had the requisite LCID state permit. See
J.A. 274. However, he still did not have state authorization to
operate an industrial solid waste landfill. So in June 2005,
Griffin sought a franchise from the Town to operate an
industrial solid waste landfill. As part of his proposal,
Griffin asked the Town to amend the franchise ordinance to allow
for such a landfill. Various public meetings and requests for
information ensued. Instead of amending the franchise ordinance
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as Griffin suggested, in May 2006, the Town amended the land use
ordinance to delete from the definition of a demolition landfill
the term "industrial solid waste." This action effectively
denied Griffin's request for a franchise to operate an
industrial solid waste landfill. Because he never obtained
local approval, Griffin did not seek a permit from the state to
operate an industrial solid waste landfill, and instead brought
the current action.
In his complaint, Griffin alleged that the Town's actions
denied him due process and equal protection under federal and
North Carolina law, and that he had a vested right to operate
the industrial solid waste landfill. Griffin also sought
specific performance and declaratory relief that the ordinance
was unconstitutional. He alleged that the Town violated his
rights by failing to amend the franchise ordinance because he
had a common law vested right to construct and operate the
installation as an industrial solid waste landfill and he spent
over $750,000 in engineering fees to prepare the landfill. On
cross-motions for summary judgment, the district court granted
summary judgment to the Town, finding that Griffin did not have
a vested right to operate an industrial solid waste landfill.
The court also refused to declare the local ordinance
unconstitutional. Griffin appeals the rulings regarding his
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vested right to operate an industrial solid waste landfill and
specific performance.
II.
Our review on appeal from the district court's grant of
summary judgment is de novo. Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 132 (4th Cir. 2002).
Under North Carolina law, whether Griffin possessed a
vested right to a franchise for an industrial solid waste
landfill turns on whether (1) he has made substantial
expenditures; (2) the expenditures were made in good faith; (3)
the expenditures were made in reasonable reliance on and after
the issuance of valid governmental approval; and (4) he would be
harmed by a change in governmental requirements. Browning-
Ferris Indust. Of S. Atl., Inc. v. Guilford County Bd. of
Adjustment, 484 S.E.2d 411, 414 (N.C. Ct. App. 1997).
Griffin's vested rights claim is that he spent
approximately $750,000 in connection with his application to the
state for a permit to operate an industrial solid waste landfill
after relying upon (1) the 1997 SUP issued by the county, (2)
the county's 1998 amendment to the definition of demolition
landfill allowing industrial solid waste in those landfills, and
(3) the Town's 2004 letter advising Griffin that it would
recognize Griffin's 1997 SUP. Griffin alleges that, by virtue
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of these authorizations, he received specific and valid
approvals from the county and the Town to construct and operate
an industrial solid waste landfill.
It is undisputed that Griffin has made substantial
expenditures in pursuit of operating the industrial solid waste
landfill. The remaining prongs from Browning-Ferris require us
to examine whether Griffin's expenses were made in good faith
and with reasonable reliance upon purported government approval
for the project.
We find that Griffin did not make these expenditures in
good faith or in reasonable reliance upon the Town, county or
state approval for the project. When Griffin applied to the
county for the SUP, there was no mention of industrial solid
waste in the application or in the resulting permit. In fact,
the SUP was issued at a time when the county’s land use
ordinance expressly prohibited landfills from disposing of
industrial solid waste. Under North Carolina law, the SUP is
limited by its own terms to those uses presented to the county
in obtaining it. Westminster Homes, Inc. v. Town of Cary Zoning
Bd. of Adjustment, 554 S.E.2d 634, 638 (N.C. 2001). Griffin
specifically represented to the county that his landfill would
be used to dispose of construction and demolition waste. He
also told the county board that his construction and demolition
landfill operated under a valid state permit for this type of
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landfill and that no "liner" was required to contain the waste.
A liner would have been required for an industrial solid waste
landfill.
Finally, and perhaps most importantly, Griffin did not
apply to the county or the Town to amend or modify the 1997 SUP.
Griffin instead chose to rely upon the 1998 amendment to the
county's definition of a demolition landfill as a retroactive
“amendment” to his SUP. However, the county's land use
ordinance, and later the Town's, required specific procedures to
amend or modify the terms of a SUP, and these actions were not
taken by Griffin. Even in the 2004 letter from the Town
recognizing the continued validity of the 1997 SUP, the letter’s
author reminded Griffin that any changes from the issued SUP
would require approval of an amended permit by the Town. The
SUP did not authorize Griffin to operate an industrial solid
waste landfill. Accordingly, Griffin cannot validly argue that
his county-issued 1997 SUP permitted him to rely in good faith
upon the proposition that he would be able to operate an
industrial solid waste landfill.
Nor did Griffin undertake his expenditures in reasonable
reliance upon Town, county, or state government actions. The
record reflects that he did not obtain all of the government
permits necessary under North Carolina law to operate an
industrial solid waste landfill. Although arguably overkill,
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three authorizations are required to construct and operate an
industrial solid waste landfill: local zoning approval, a local
government franchise, and a permit from the State of North
Carolina. N.C. Gen. Stat. Ann. §§ 130A-294(b1)(3) & (4).2
It is doubtful that Griffin obtained any of the required
state permits for an industrial solid waste landfill. The only
argument that he obtained zoning approval is that the SUP was
retroactively amended when the county board changed the
definition of a demolition landfill to include industrial solid
waste. In light of our previous discussion, however, this
argument carries little weight. Further, the franchise
agreement with the Town in 2003 did not contain authorization
for industrial solid waste. Likewise, the permit he received
from the state only allowed him to continue to operate his C & D
landfill, not an industrial solid waste landfill. None of
Griffin’s successful permit or franchise applications requested
specific authorization to operate an industrial solid waste
landfill. Where multiple permits or governmental approvals are
required for a project, a landowner has no vested right to
complete that project unless he makes his substantial
expenditures in good faith reliance on and after receiving all
2 We reject Griffin’s arguments that this was either not the
applicable statute or that his operation should be excepted from
the statute’s requirements.
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requisite permits or other required approvals. See, e.g., PNE
AOA Media, L.L.C. v. Jackson County, 554 S.E.2d 657, 663 (N.C.
Ct. App. 2001) (holding that expenditures made prior to
acquiring necessary permits are not made in good faith reliance
upon those permits, and company did not have a vested right to
erect a billboard on a state highway). Because Griffin never
obtained the required permits for industrial solid waste
landfills, he could not have expended funds in reasonable
reliance upon such permits.
III.
Though Griffin has been operating landfills in Union County
and the Town since 1992, his landfills have never accepted
industrial solid waste, and he has never obtained a valid permit
to do so. Therefore, he has no vested right to operate this
category of landfill. The decision of the district court is
affirmed.
AFFIRMED

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