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From: Ducker, Richard D [mailto:Ducker@sog.unc.

edu] Sent: Monday, September 26, 2011 3:48 PM To: Kelly Stultz Subject: RE: Franchise

Kelly, G.s. 130A-294(b1)(2) provides that when a party intends to apply for a new permit, the renewal of a permit, or a substantial amendment to a permit for a sanitary landfill shall obtain, prior to applying for a permit, a franchise for the operation of the sanitary landfill from each local government having jurisdiction over any part of the land on which the sanitary landfill and its appurtenances are located or to be located. Given the context and placement of this language in the statutes, it seems to me that the reference to permit is intended to refer to the state landfill permit issued by the North Carolina Department of Environment and Natural Resources. In other words the applicant must obtain a local government landfill franchise before obtaining a state landfill permit. The statutes do not specifically say where a zoning permit fits into the picture. However, G.S. 130A-294(b1)(4) provides, among other things, that in considering an application for the state landfill permit, the state is to consider whether the local government with zoning authority believes that the proposal is consistent with local zoning. Unless the local government makes a determination that the proposal is consistent with the local ordinance, the department is to add as a condition to the state permit that the applicant first must comply with any applicable zoning or other ordinance. This language suggests to me that the zoning determination must precede the state landfill permit just as the franchise agreement must precede it. There is nothing in the statutes that speaks to whether the local zoning decisions must precede the local franchise decision or vice versa. But because the zoning decision applies to a particularly site and, in your case, involves a quasi-judicial decision, it seems to me that the more structured process of considering the zoning permit application should precede the franchise consideration. In this regard since the franchise process is less well-defined and is arguably more of a legislative process, there is at least some slight risk of elected officials making statements during the franchise process that might be construed to bias the quasi-judicial process, if the quasi-judicial process is not allowed to come first. Nonetheless, since the statutes do not specify whether the zoning decision or the franchise decision must come first, a local government does appear to have flexibility in determining the order of these two. I hope this helps.

Rich

Richard Ducker Adjunct Associate Professor of Public Law and Government School of Government The University of North Carolina at Chapel Hill Campus Box 3330, Knapp-Sanders Building Chapel Hill, NC 27599-3330 T: 919.966.4179 F: 919.962.0654 ducker@sog.unc.edu