Civil Rights – Discrimination – Public Utilities — Solid Waste Collection – Constitutional – Equal Protection Clause

Cedar Greene, LLC v. City of Charlotte (Lawyers Weekly No. 12-07-0800, 37 pp.) (J. Douglas McCullough, J.) (Ann Marie Calabria, J., dissenting) Appealed from Mecklenburg County Superior Court. (H. William Constangy, J.) N.C. App. Full-text opinion.

Holding:  The city’s policy of reimbursement for solid waste disposal for multi-family complexes – namely that it will reimburse solid waste disposal fees only for its single preferred collection company – is not discriminatory.

An LLC that owns a multi-family apartment complex in Charlotte challenged the reimbursement policy after trying to hire a lower-priced solid waste collection company, also a plaintiff.  The lower-priced collection company, however, would not be reimbursed for its fees at the landfill. Although the company offered to meet all the standards required for supplemental solid waste collection and disposal from multi-family complexes, the city informed that collector, and plaintiff, that it  would only provide the reimbursements to Republic, a collection company that had bid for and won the city’s multi-family contract. As a result, plaintiff argued, Republic had an unfair advantage over other collectors – not just in the main contract but in the provision of additional, or supplemental, collection services. The trial court agreed, granting summary judgment and injunctive relief to the apartment owners and lower-priced collection company.

However, the collection company did not have standing in the case because “the discrimination principle embodied in N.C. Gen. Stat. § 160A-314 as enunciated under our case law protects only customers of public enterprise services, not service providers.” What’s more, because the apartment owners continued to have their solid waste collected by Republic, they had not suffered any loss and also lacked standing.

“[A] city has broad discretion in setting rates and charges for the provision of public enterprise services, with the single limitation being that the city cannot act in an arbitrary or discriminatory manner in setting such rates and charges or in providing such services.” The court determined that the City of Charlotte’s policy of reimbursing only the fees paid by its preferred provider treated all multi-family complexes equally and did not create a burden for the end consumer. For that reason, summary judgment against the city is reversed. However, we remand for consideration of plaintiffs’ equal protection claims, which went unaddressed when the summary judgment was awarded.

Dissent

(Calabria, J.) Neither the statute nor the case law strictly limits discrimination solely to customers.