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HomeMy WebLinkAboutMINUTES - 10011985 - 1.55 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, -CALIFORNIA Adopted this Order on October 1 , 1985 , by the following vote: AYES: Supervisors Powers , McPeak , Schroder , Torlakson , Fanden . NOES: None . ABSENT: None . ABSTAIN: None . SUBJECT: Report on Solid Waste Disposal Sites The Board received a report dated September 20, 19859 prepared by County Counsel regarding Solid Waste Disposal Sites including Non-Emergency Franchise Rate Regulation, Disposal Site Fill Restrictions and Land Use Regulations and Police Power Regulation of Disposal Site ("Tipping" ) fees . IT IS BY THE BOARD ORDERED that the attached report is ACKNOWLEDGED. ce: County Administrator Community Development County Counsel V7 COUNTY COUNSEL'S OFFICE RECEIVED CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: September 20, 1985 ,;,-; c r MLDATCHELOn CLERK BOARD OF SUPERVISORS NT A COSTA O. To: Board. of Supervisors r - Deputy From: Victor. J . Westman , County Counsel By: Lillian T. Fujii , Deputy County Counsel / Re: Solid Waste Disposal Sites : Franchising & rates , restrictl� Ns waste received , regulation of tipping fees . Introduction. The Board asked this office, with the assistance of the Community Development Department , to respond to it• about three aspects of the pending landfill siting selection process . First , the preparation of draft legislation which would allow County regulation in non-emergency circumstances of rates at private disposal sites in the unincorporated area . Second, the extent to which the County may , through the land use regulation- approval process , restrict the amount of waste which may be depo- sited at an unincorporated area disposal site . And third, a discussion of the factual circumstances which could constitute adequate "emergency-type" conditions to allow regulation of disposal site (" tipping" ) fees . Our report follows: 1 . Non-Emergency_Franchise_Rate_Regulation .. a. Request . You have asked this office to prepare draft legislation to provide the County with authorization to regulate tipping fees at disposal sites in non-emergency situations . b. Response . In this office ' s 2-5-85 memorandum (Opn . No. 85-19) to the Public Works Director, we suggested that for the unincorporated area , the County could seek an amendment to Health and Safety Code 54200, to enable it to franchise disposal sites ; thereby obtaining the power to regulate their rates . Attached hereto and marked Exhibit A is a draft amendment to H.&S.C. SS4200 and 4201 for this purpose . If this type of legislation is to apply to the current proposed landfill sites and their " opera- tors , it must be adopted and implemented prior to the date the sites ' applications are approved for operation . It should be noted that the establishing of a solid waste collection system (currently subject to franchise by the County under H.&S.C. 54200) is a relatively simple matter compared to establishing a site for solid waste disposal . A site developer , DISTRIBUTION _::;;4oard Members County Administrator .,.�. Heelth �rViaes �. Community DeVelopment Rtlt-H-Works ,, _:ttyCounsel Board of Supervisors knowing that the operation of a disposal site will be subject to the additional terms and conditions of a franchise agreement , may not be encouraged to adventure the type of investment necessary to establish a disposal site. For this reason, what possible effects the franchising of disposal sites may have on the development of disposal sites in the County should be studied by the County' s technical staff if there is further interest in this subject . In a September 10 , 1985 Board Order concerning solid waste issues (Recommendation No. 2) , the Board requested this office to prepare legislation to allow regulation of disposal fees at existing and future disposal sites . through a solid waste manage- ment plan . Such draft legislation will be forthcoming shortly. 2. Disposal—Site_Fill Restrictions_&_Land Use Regulations_ ---- ------ ---- a . _Request . May the Board, pursuant to the land use approval process , restrict the amount of waste received at a disposal site on a ton-per-day basis? b . Response . Under the County' s police power , the Board could , as a condition of granting a land use entitlement for the operation of a disposal site , limit the amount of wastes received on a ton-per-day basis , provided such limitation is reasonable in relation to the circumstances of the involved entitlement application . In our May 10, 1985 opinion (Opn . No. 85-64) to the Board' s Internal Operations Committee , we discussed the ability of the Board, pursuant to the granting of a land use entitlement , to impose conditions upon the operation of a disposal site . Generally, a condition will be upheld if it is within a public entity' s police power , has a reasonable relation to the public welfare , and is not arbitrary or unreasonable . (Curtin , California Land-Use and_Planning_Law 5th Ed . , Jan . 1985 , Pg. 105 . ) ----------------------- Given the broad ability of the County, under its police power , to impose conditions upon land use entitlements , we conclude that given the proper circumstances , such a condition could be valid. Such a condition may be supportable under the police power , for example , where it is necessary to preserve needed landfill space , to limit the number of vehicles travelling to the disposal site (a mitigation measure required by the California Environmental Quality Act [Pub.Res .Code 521081 ] ) , or to accomplish specified goals in the General Plan or Solid Waste Management Plan . (See Garden Grove Sanitary_District v. County_of Orange [ 1984 ] 162 -------------------- --------- Cal .App .3d 842 , 208 Cal .Rptr . 777 ; Soderling_v__C_ity_of_Santa Monica [ 1983 ] 142 Cal .App .3d 501 , 191 Cal .Rptr . 140 ; our Opn 85-64 , pg . 7, dated 5-10-85. ) Whether such need justifying this type of condition exists will depend upon the actual application' s circumstances at that time . -2- ba7 d order i ss Board of Supervisors For example , if it is found that the establishment of a disposal site at a particular location will create excessive noise near an area of residential development , limiting the number of truck trips per day to the site may be justified under the police power as a measure to mitigate that impact . (Pub.Res .Code 921081 . ) However , concerning any particular application , all of the existing facts must be considered. Limiting the amount of waste received at a disposal site may increase the operating costs of that site (see , e .g . , Solid_Waste_Manapement_Project_Report , by Central Contra Costa Sanitary District and Contra Costa County, Volume II , Technical Memorandum No . 5, Table TM 5-2 ) . If the increased costs render the site uneconomical , the condition may be subject to challenge on the ground that it is not a reasonable condition because it is not clearly justified by other circum- stances applicable to the application . As noted in our 5-10-85 Opinion No . 85-64, conditions such as the one proposed here to regulate ongoing businesses have not yet faced reported judicial challenge . 3 . Police Power--Reaulation_of Disposal Site ("Tipping" )_fees . —_--------- ----- ---- - a . Request . The Board requests further detail on the type of factual situation which must exist to authorize the Board , pur- suant to the police power , to regulate disposal (" tipping" ) fees . b. Response. In our 2-5-85 memorandum to the Public Works Director (our Opn . No. 85-19) , the following example was discussed of an "emergency-type" situation which would probably provide the "consitutional facts" to justify Board regulation of tipping fees at disposal sites within the unincorporated area of the County: shortage of landfill space , coupled with exploitation by sanitary landfill owners of such shortage by charging unreasonably high rates , and resulting harm, e .g . , many households becoming unable to afford garbage disposal service . This example was generated based upon the language of the court in Birkenfeld v._City_of_Berkeley ( 1976) 17 Cal . 3d 129, 160 , 130 Ca1 .Rptr. 465 , 550 P.2d 1001 , that the constitutionality of Berkeley' s rent control ordinances depended "upon_the actual - ---------- existence of a housing an concomitant ill effects of ----------------- -------cornif ----------------f sufficient seriousness to make rent control a rational curative --------------------------------------------------------------- measure . " in other words , there must be a disposal site shortage and negative consequences due to such shortage , so that price control is necessary to mitigate those consequences . -3- Microilm--_i i;h board order Board of Supervisors As noted above , the Board has requested this office to prepare state legislation to allow regulation of disposal fees at existing and future disposal sites through a county solid waste management plan . This memorandum was reviewed by the Community Development Department . LTF:df cc: Phil Batchelor , County Administrator A.A. Dehaesus , Director , Community Development -4- MiaofilYjc board order ,5'� io-i-mss' EXHIBIT "A" PROPOSED AMENDMENTS TO HEALTH AND SAFTEY CODE S§4200 & 4201 "4200 . Every franchise or privilege for the collection , *** destruction , or disposal. including_the_operation of a disposal facility._as_defined in Section 66714 of the Government Code.. or ------ ---------------------------------------------- any combination thereof , of garbage , waste , offal , and debris , shall be granted by the board of supervisors of any county only under the terms and conditions of this chapter . 114201 . Any county may, by resolution of the board of super- visors , call for bids for the granting of a franchise , exclusive or otherwise , for the collection , *** destruction , or_disposal. including_the operation_of a disposal_facility_as_defined in Section 66714 of the Government -Code., or any combination thereof , ------------------------------- of garbage , waste , offal , and debris , according to the terms and conditions set forth in the resolution , for a period of time not to exceed 25 years . The terms and conditi--ons----- may_include._but_are ----------------- not limited_to._rate_regulation._site_operations and franchise fees . Thereafter the board of supervisors shall cause to be published once a week for two successive weeks a notice which shall set forth all of the terms and conditions embraced in the resolution and the time , date , and place for the receiving and opening of sealed bids which shall not be sooner than four full weeks from date of the first publication of the notice . vvi!,.7 board order / d Upon examination by the board of supervisors of the bids , the franchise maybe` awarded to the lowest qualified bidder . The board of supervisors may postpone the granting' of the franchise from time to time until it has had a full and complete opportunity to examine into the merits of each bid. LTF:df (8-14-85 ) `�17