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South County Sand & Gravel Co. v. S. Kingstown, Town of

ELR Citation: 29 ELR 20321
Nos. 98-1530, 160 F.3d 834/(1st Cir., 11/23/1998)

The court holds constitutional a local zoning ordinance prohibiting land removal businesses from expanding in surface area their existing excavated area by more than 25 percent unless they obtain a special use permit. The court first holds that it will analyze the case under the doctrine of substantive due process even though the Takings Clause would seem to supply the proper decisional framework for analyzing the land removal company's challenge to the town's zoning ordinance. The court next holds that the challenged ordinance bears a rational connection to a legitimate public purpose. The town claims that it needs to control the expansion of new and existing earth removal operations in order to prevent a loss of its natural resources including wildlife habitat, groundwater quality, and scenic value. There is no dispute that these are legitimate municipal goals. It is equally free from doubt that controlling earth removal can be an appropriate means of assuring the achievement of such goals.

The court then rejects the company's argument that the ordinance is irrational because the amount of controlled acreage under the 25-percent rule will vary from one plot of land to another even though the environmental concerns affecting both are the same. Even assuming, arguendo, that this claim is true, the court cannot overlook that the town's ordinance functions to balance environmental with economic concerns in a manner that protects the legitimate interests of firms that have made considerable investments in their businesses. The court also holds that the permit application process does not render the ordinance vulnerable to a facial challenge. The ordinance only requires that excavators apply for permits; it does not guarantee their automatic denial. Moreover, the court rejects the suggestion that the special permit procedures are problematic because they are standardless. Some municipal legislation may confer such wide-ranging discretion on municipal officials as to court a diagnosis of constitutional infirmity. However, the discretion that the ordinance bestows on the town's zoning board exhibits no such symptoms. The court also rejects the company's argument that the ordinance is unenforceable and, thus, irrational, because the town failed to ascertain each earth remover's acreage under excavation as of the date that the law took effect. The town's failure in this regard may make it much harder to sanction property owners who seek to excavate too much too soon, but that failure has no impact on the validity of the ordinance itself. The court also holds that a provision requiring new earth removal operations to submit detailed soil erosion and sediment control plans with their special permit applications, but exempting existing operators from this requirement, does not render the ordinance unconstitutional. The court further rejects the company's argument concerning the manner in which the ordinance was adopted, because whether or not a particular piece of legislation is bad policy, it will survive an abstract substantive due process or takings challenge as long as the means that it embodies are substantially related to a legitimate governmental purpose. Last, the court refuses to address the company's claim that the town attempted to evade state law by enacting the ordinance, because a municipality's violation of state law, without more, is insufficient to pass as a violation of the U.S. Constitution, and the company will have ample opportunity to seek a remedy for this alleged wrong in state court.

Counsel for Plaintiff
Herbert F. DeSimone Jr.
DeSimone & Leach
The Hall Bldg.
49 Weybosset St., Providence RI 02903
(401) 421-8200

Counsel for Defendants
Kathleen M. Powers, Marc DeSisto
DeSisto Law Offices
58 Weybosset St., 4th Fl., Providence RI 02903
(401) 421-0170