OPINION ISSUED NOVEMBER 19, 1985
DEPARTMENT OF HEALTH
Claimant appeared in person.
Henry C. Bias, Jr., Deputy Attorney General; J. Bradley Russell,
Assistant Attorney General; and Edgar Bibb, Assistant Attorney
General; for Respondent.
The notice of claim was filed on March 11, 1974, by Victor
Solomon, claiming damages of $36,000 incident to refusal of the
respondent to grant him a permit for a landfill in Monongalia
County. Claimant alleged a loss of income of $21,000 from July 1972
to the date of filing and a loss of future income of $15,000.
The claim was set for hearing on five occasions from 1974 to 1977.
Each time, the hearing was continued upon claimant's request or by
mutual agreement. At the conclusion of the hearing at Morgantown on
July 21, 1982, the parties agreed that the case was 'submitted". On
October 18, 1982, claimant filed a motion for an additional
hearing. The motion was granted, and another hearing was held in
Morgantown on July 18, 1983. Several witnesses not being present,
the claimant was granted the privilege of deposing them by written
interrogatories. This was done.
For several years prior to the filing of his claim, Victor
Solomon, by permit, had operated a landfill in the area known as
Laurel Point. A roadway problem developed there in July of 1972,
and, without a permit, he began to operate an area known as Martin
Hollow as a landfill. Upon discovery, the respondent issued a cease
and desist order on or about July 27, 1972. Claimant then agreed to
submit an application for a permit to operate the Martin Hollow
area. Claimant states, but offered little evidence to prove, that
his previous customers, consisting of local municipalities,
businesses and individuals, were contacted by respondent and
advised to take their garbage and trash elsewhere, to some other
landfill; that he thus lost the business of those customers. Many
months passed as the claimant got his application into proper form
for consideration by respondent. Respondent was represented by a
succession of lawyers and engineers. The permit was finally issued
September 26, 1973. However, the permit then issued would have
required the claimant to begin at a different elevation than the
claimant desired, thus limiting the usable area. Infractions of
respondent's landfill regulations were reported to the claimant after an inspection of July 29, 1974. By letter dated August 12,
1974, claimant's legal counsel advised respondent that claimant was
not operating a sanitary landfill because of "present
restrictions"; that his operations were being conducted under his
salvage yard permit; that claimant " . . . would consent to the
revocation of his sanitary landfill approval as of August 16, 1974,
or prior to that time, with the understanding that he would have
the right to reapply should conditions warrant."
Subsequently, in 1976, the land in question appears to have been
leased to the Monongalia County Commission for five years. In
September of 1981, it appears that Solo Enterprises, a West
Virginia corporation, by Victor Solomon as its agent, made
application for a landfill permit, and the permit was not granted.
Solo Enterprises is not a party to the action before this Court,
and it is a different entity than Victor Solomon, the individual
claimant who is a party to the action before this Court.
During the years, from 1972 to 1983, it appears that the matter of
a sanitary landfill permit, for Victor Solomon or Solo Enterprises,
has been the subject of litigation in the Circuit Courts of
Monongalia and Kanawha counties. Generally, the claimant, Victor
Solomon, has in this action alleged and attempted to prove
discrimination on the part of the respondent in several ways. For
instance, he complains of the length of time taken by the
respondent in processing his application of 1972. He complains that
a competing landfill operation of the City of Morgantown was not
required by respondent to operate under strict adherence to
respondent's landfill regulations. He disagrees with respondent's
engineering personnel with reference to the elevation and starting
point required in the permit issued to him in September 1973. He
makes other allegations of discrimination.
The Court is of the opinion that the claimant has not proven such
discrimination by a preponderance of the evidence, and must deny