ORDER
Plaintiff BFI Waste Systems of North America (“BFI”) filed this case alleging that Defendants, DeKalb County (“the County”), the County CEO, and the County Commissioners, violated federal and state law in connection with their zoning decisions. BFI originally filed this suit in the Superior Court of DeKalb County, Georgia. Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1441(b) and 1446. With the exception of two claims discussed infra Part III.A.l., this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Now before the Court for consideration are Defendants’ Motion for Summary Judgment [26-1] and Motion to Strike the Written Report of Plaintiffs Engineer [38-1]. After considering the entire record, the Court enters the following Order.
*1341 Factual Background
The following facts are undisputed unless otherwise noted. BFI is a nationwide business that develops and operates landfills and solid waste disposal facilities throughout the United States. BFI owns more than 148 acres of real property in the southern portion of DeKalb County, Georgia; it opened the Hickory Ridge landfill there in 1992. 1 BFI anticipated that the life span of the landfill would be about twelve years, until approximately 2004. Hickory Ridge was designed in conformance with federal and state regulations as they existed in 1992, and was optimized so that the site met all applicable rules. 2
At the time of the initial construction of Hickory Ridge, the рroperty was zoned to the “M” classification under the DeKalb County Code. At that time, landfills were a permitted use under the “M” classification. In April 1999, DeKalb County adopted a new Zoning Ordinance. The new Ordinance included “M” and “■ — 2” classifications; landfills were not listed as permitted uses in either classification. DeKalb County, Ga., Code of Ordinances §§ 27-618(“M”), -638 (“ — 2”). Instead, landfills were allowed to operate as special uses on land classified as “ — 2,” only if the owners obtained Special Land Use Permits (“SLUPs”). Id. § 27-640. Because Hickory Ridge existed prior to 1999, it was permitted to continue to operate as a nonconforming use. Id. §§ 27-5, -937.
BFI decided to modify its current design to allow a vertical expansion of the Hickory Ridge landfill, which would extend the life of the landfill for as many as eight years. According to BFI’s expert, Frank S. Gray, such an expansion would have yielded approximately $473 million in additional gross revenue. (Pl.’s Ex. H (Gray Report, Executive Summary).) In order to obtain permission from the State for the vertical expansion, BFI needed a letter from DeKalb County stating that the property complied with local zoning ordinances. 3 To come into compliance, BFI submitted applications to DeKalb County to rezone the property from the “M” classification to the “ — 2” classification and to obtain a SLUP, in September 2001.
On February 26, 2002, Defendants held a public hearing concerning BFI’s applications. The Planning Department had recommended approval of BFI’s rezoning application, with some conditions, based on the location of the landfill and the surrounding land use. (Maxey Dep. at 36; Tr. at 22.) 4 At the hearing, however, several residents living near Hickory Ridge complained of offensive odors at their homes. (Tr. at 7, 14.) Many members of the public spoke in opposition to the expansion, citing quality of life, health, property value, and environmental justice concerns. The Commissioners also heard testimony on the potential negative impacts of landfills, read aloud a letter from then-Congressperson Cynthia McKinney, *1342 who expressed concerns about environmental justice, and considered research on landfills’ environmental impacts. {See, e.g., Tr. at 38^18 (testimony), 65-65 (letter), 68-70 (research).) The Commission voted to deny the rezoning application and thereafter denied the SLUP request. (Tr. at 93, 103.)
Based on the proceedings of the hearing, Defendants explain that the Commission denied BFI’s application in part to provide protection to Georgia’s ground water. (Tr. at 85.) BFI contends, however, that the Board relied on faulty, outdated, and irrelevant information and orchestrated a case against the application at the public hearing. (BFI’s Resp. to Defs.’ Statement of Undisputed Facts ¶26 [hereinafter BFI’s Resp. to Facts].) BFI states that Defendants had no credible evidence before them to conclude that the Hickory Ridge landfill posed any threat to ground water. (Id. ¶ 27) In contrast, BFI has presented evidence to show that the County’s own landfill, Seminole Road, has exceeded acceptable methane concentrations in its monitoring wells on several occasions. (Scott Dep. at 15-16.) 5 BFI also notes that the Georgia Environmental Protection Division (“EPD”) has responded to odor complaints attributed to Hickory Ridge, but upon investigation, has not found that the offensive odors have come from Hickory Ridge. (PL’s Ex. F (Arcadis Benefits Evaluation Study at 7-8).) Finally, BFI contends that public statements made at the meeting indicated Defendants’ intent to eliminate private landfills through the local government’s regulatory powers and monopolize the solid waste market in the DeKalb County region. (See Tr. at 93 (Ms. Yates: “[PJrivate ownership creates problеms .... There is nothing wrong with government ownership of landfills.”).)
Although its applications were denied, Hickory Ridge continues to operate as a municipal solid waste landfill; DeKalb County has not imposed any restrictions on the tonnage coming into the landfill. (Kauffman Dep. at 71.) Nevertheless, as a result of being unable to expand, BFI has chosen to reduce the volume going into the landfill to try to lengthen its life. (Id.) The parties agree that all landfills eventually reach capacity. When the Hickory Ridge landfill closes, BFI plans to take its waste to another landfill in Georgia, in either Buford or Taylor County. BFI contends that having to take the waste to its other landfills will require price increases which will put its contracts at risk. (Id. at 57.) Further, BFI submits that it can no longer compete in the DeKalb County waste disposal market and it anticipates losing customers as a result of increased transportation costs. (Id. at 57.) Even so, the parties agree that DeKalb’s denial of BFI’s application has not caused BFI to lose any of its existing contracts or customers.
DeKalb County has no authority over any contracts BFI has with other counties, nor has the County indicated it wants to cancel any of BFI’s currently existing contracts. (Id. at 72.) DeKalb County uses its Sеminole Road landfill solely for De-Kalb County municipal solid waste and does not accept waste from any other source. In contrast, less than ten percent of the waste taken into the Hickory Ridge landfill comes from within the physical boundaries of DeKalb County. Defendants’ Solid Waste Management Plan calls *1343 for no new permits to be granted for land-filling of municipal solid waste during a ten-year period or until a need arises. (Michael Dep. Ex. 2 at IX-9.) BFI contends that by enacting the Zoning Ordinance and denying BFI’s application, the County took “initial steps which will enable the County to take BFI’s business in the future.” (Pl.’s Resp. to Facts ¶ 35.) 6
Since the County enacted its Zoning Ordinance in 1999, no waste company other than BFI has applied for a rezoning of its landfill site from “M” to “M-2.” Nor has any landfill site been rezoned from “M” to “M-2” since that time. Prior to 1999, however, Waste Management applied for and obtained a vertical expansion permit for Live Oak landfill. Defendants explain that because Waste Management’s application was made prior to the 1999 Zoning Ordinance, Waste Management was in compliance with then-current zoning laws and did not need to request a rezoning. 7 According to Defendants, had BFI also sought a vеrtical expansion from the State prior to April 1999, there would have been no need to seek a rezoning from DeKalb County because the Hickory Ridge landfill would have been in compliance with then-current zoning laws. (Kaufmann Dep. at 45-47.) 8 BFI, however, points to a letter from Raymond R. White, Planning Director of DeKalb County, to James Dunbar, Program Manager of the EPD’s Solid Waste Management Program dated February 2, 1999 (“the February 2 letter”), certifying that Waste Management’s landfill “is a legal nonconforming use (under DeKalb County’s zoning and land use ordinances) as it exists today.” (PL’s Ex. B.) BFI emphasizes that although EPD rules require a reaffirmation of the verification of zoning, DeKalb County never issued such a reaffirmation. On August 3, 1999, the EPD issued a permit to Waste Management for the vertical expansion of its landfill. (Pl.’s Ex. C.)
BFI makes the following claims: (1) violation of the takings prohibitions in the Fifth Amendment to the U.S. Constitution and Article I, Section 3, Paragraph 1 of the Georgia Constitution and the remedy of inverse condemnation for which compensation is due; (2) violations of the substantive due process protections in the Fourteenth Amendment to the U.S. Constitution and Article I, § 1, ¶ 1 of the Georgia Constitution; (3) violations of the Equal Protection Clauses of the U.S. Constitution and Article I, § 1, ¶ 2 to the Geоrgia Constitution; (4) violations of the dormant Commerce Clause of the U.S. Constitution; and (5) violations of the Sherman Act, 15 U.S.C. § 2, et seq. BFI seeks declaratory and injunctive relief, *1344 just compensation, and a writ of mandamus.
Discussion
Defendants have moved for summary judgment on all of BFI’s claims. In ruling on a motion for summary judgment, a court may consider only evidence that would be admissible at trial.
White v. Wells Fargo Guard Servs.,
I. Defendants’ Motion to Strike
Defendants move to strike the written report of BFI’s expert, engineer Frank L. Gray. Mr. Gray’s deposition took place on November 8, 2002, but BFI did not turn over its expert’s report until more than four months after the deposition and after Defendants filed their Motion for Summary Judgment. Defendants contend that Mr. Gray offered many opinions in his written report on matters for which he specifically denied knowledge during his deposition. Further, they contend that Mr. Gray’s report offers several opinions without any indication of the sources of information upon which those opinions were based.
BFI responds that although Mr. Gray’s report is dated January 20, 2003, BFI did not receive the report until March 30, 2003. BFI immediately sent a copy of the report to Defendants. Because Defendants have not sought to redepose Mr. Gray and the case has not yet been scheduled for trial, BFI argues that Defendants have not been prejudiced by new material in the report. Finally, BFI notes that as an expert, Mr. Gray may testify in terms of his opinion without testifying to the underlying facts. BFI states that Mr. Gray’s opinions are based on his professional experience and documents in the record.
Federal Rule of Civil Procedure 26(a)(2)(A) requires parties to disclose the identity of any expert who may testify at trial. This disclosure must be accompanied by a written report containing, inter alia, all opinions to be expressed, and the reasons and bases for those opinions. Fed.R.Civ.P. 26(a)(2)(B). The Local Rules require parties to designate their experts sufficiently early “to permit the opposing party the opportunity to depose the expert witness sufficiently in advance of the close of discovery.” N.D. Ga. Local R. 26.2C. The Federal Rules specify that in absence of directions from the court or stipulation by the parties, “the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial.” Fed.R.Civ.P. 26(a)(2)(C).
The facts here are distinguishable from those in
Williams v. Roberts,
Unlike the disclosures in Williams, Mr. Gray’s report was provided to Defendants as soon as it became availablе. Although the report came late-after Defendants had moved for summary judgment-Defendants have not shown that they are prejudiced by the report’s untimeliness. Defendants did not seek to redepose Mr. Gray or otherwise address the report in their Reply. Nor have Defendants argued that Mr. Gray is not qualified as an expert or that they need additional time to evaluate whether his methods are sound. Indeed, BFI timely identified Mr. Gray as an expert witness, but there is no indication Defendants ever intended to introduce their own expert to rebut Mr. Gray’s testimony. All of these factors lead the Court to conclude that the expert report need not be excluded. Thus, the Court hereby DENIES Defendants’ Motion to Strike the Written Report of Plaintiffs Engineer [38-1]. To the extent that Defendants’ arguments center on the admissibility of material in the report, however, the Court considers those objections below.
II. Evidentiary Objections
A. Expert Report
Defendants raise several objections to the content of the expert report by Mr. Gray (Pl.’s Ex. H). The Court’s rulings are set forth below; the numbers below correspond to the numbered paragraphs detailing Defendants’ objections. {See Notice of Objections [40-1].)
1. The statement, “the county commissioners through their own testimony and delivery of witnesses and information presentеd at the public hearing appeared to be presented in a fashion to substantiate an emotional denial of the fact that all activities completed by BFI ... is [sic] completed within the permitted guidelines ....” is outside the scope of this expert’s knowledge and speculative.
2. As an expert, Mr. Gray is entitled to state that “[s]mall traces of contaminants within the presented wells are very typical
3, 4, 5, 6. To the extent that the second paragraph on page two of the report (beginning “Due to the change ... ”) attempts to describe the application of the County’s land use ordinances to Hickory Ridge, Mr. Gray does not appear to have the qualifications necessary for the admissibility of such opinions. The Court makes the same finding with respect to the sentence “[t]his application ... completely and adequately outlined the required zoning conditions .... ” However, Mr. Gray may give his opinions as to what BFI would need to do to apply for a rezoning application and BFI’s ability to operate its facility.
7, 8, 9. To the extent Mr. Gray opines as to “the fact that the Planning Department did not possess the required technical expertise,” and the idea that “Planning Departments arе not typically staffed with registered professional engineers ...” the Court finds that Mr. Gray is not qualified to testify as to the operation of Defendants’ Planning Department. The Court makes the same finding with respect to the sentence, “Furthermore, should the same request be made by DeKalb County of [sic] their own Seminole Road Facility, I would expect the same results of the Planning Department.”
*1346 10, 11. Based on the record before it, the Court is unable to determine the admissibility of the statements to which Defendant objects in paragraphs ten and eleven. For purposes of the pending Motion for Summary Judgment only, the Court will not disregard these statements.
12. Mr. Gray is qualified to testify that elevated methane levels are “to be expected.”
13, 14. Mr. Gray is qualified to testify about financial considerations, and the Atlanta market’s practice of typically charging on a per-ton basis.
. 15, 16, 17,18. Mr. Gray’s reference to a recent survey is allowable. See Fed. R.Evid. 703. The Court notes that Defendants have not challenged Mr. Gray’s methodology or requested a copy of the recent survey upon which Mr. Gray relied. Similarly, Mr. Gray’s conversion of airspace volume to total pounds and realizable gross revenue is permissible. Id.
B. Documents
Defendants object to several of BFI’s Exhibits on various grounds. As to Defendants’ objection that Exhibits A-E, G, and H were not authenticated, the matter appears to be resolved for all of these exhibits except Exhibit D. Exhibits A-C and E have been re-filed with certification from their records custodian.
9
(See
PL’s Notice of Filing-[47-1].) BFI states that Exhibit G was produced by Defendants’ witness Tommy Malone with permission of Defendants’ counsel.. BFI has submitted a verification of Exhibit H. (Pl.’s Resp. to Notice of Objection [46-1] Ex. A (verifying expert report).) Exhibit D, however, has not been authenticated. Accordingly, the Court excludes it from consideration.
See Burnett v. Stagner Hotel Courts, Inc.,
Defendants further object to Plaintiffs Exhibits A-E, stating that BFI disclosed these documents on May 7, 2003, well after the close of discovery. Moreover, Defendants argue that BFI failed to supplement its discovery responses with re„spect to these documents. BFI responds that it did not obtain these exhibits until shortly before its Response to Defendants’ Motion for Summary Judgment; moreover, it contends these documents are in Defendants’ possession in connection with the approval of Live Oak landfill’s vertical expansion and so they cannot prejudice Defendants in any way.
As to Exhibits A and C, it is not apparent on the face of the documents why Defendants would already have had the documents in their possession. However, the Court sees no prejudice in these documents; they are relevant to show that the Live Oak Landfill was permitted for a vertical expansion, a fact that is undisputed.
Exhibits B and E are copies of letters sent by County officials in connection with Waste Management’s attempt to obtain a vertical expansion permit for Live Oak landfill. BFI relies on Exhibit B (“the February 2 letter”) to show a dispute as to whether Live Oak landfill was a “legal nonconforming use” prior to the enactment of the 1999 Zoning Ordinance. (See infra Part III.A.3.) As discussed below, however, the parties’ differing characterizations of Live Oak’s pre-1999 Zoning Ordinance status do not amount to a dispute of material facts. Thus, there is no prejudice to Defendants in admitting this Exhibit. As *1347 to Exhibit E, this letter supports undisputed facts and there is no prejudice to Defendants in its admission.
III. Motion for Summary Judgment
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. FedJEl.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the non-movant.
Adickes v. S.H. Kress & Co.,
A. Constitutional Claims
BFI’s constitutional claims implicate takings, substantive due process, equal protection, and the dormant Commerce Clause. 10
1. Takings, Inverse Condemnation, and Ripeness
BFI contends that Defendants’ denial of BFI’s request to rezone constitutes a regulatory taking in violation of the U.S. and Georgia Constitutions. BFI claims that Defendants’ actions constituted inverse condemnation of its property and it is entitled to just compensation. Although no party raises the issue, the Court finds that it does not have jurisdiction of these claims because they are not ripe. 11
A regulation “restricting the use of property may in some limited circumstances amount to a taking.”
Rymer v. Douglas County,
Here, BFI first filed this case in the Superior Court of DeKalb County, Georgia. Defendants removed the case to this Court. Because BFI has not been able to pursue its inverse condemnation claim in state court, this Court lacks jurisdiction over the takings and inverse condemnation claims. However, because these claims are before the Court following a removal, the appropriate action is to remand those claims to the state court.
See generally Milliken v. Town of Addison,
On remand, the parties may consider making a
Jennings
reservation of the federal takings claim for federal court adjudication.
Jennings v. Caddo Parish Sch. Bd.,
In light of the right to preserve the federal takings claim for adjudication in *1349 this Court, this action will remain open until this matter is resolved. Accordingly, the Court hereby REMANDS BFI’s claims of takings under the Georgia and U.S. Constitutions, and inverse condemnation, to the Superior Court of DeKalb County, Georgia. The Clerk is DIRECTED not to close this case until further Order of this Court. The parties are ORDERED to submit a status report to this Court within six months of the date of entry of this Order.
2. Substantive due process
BFI alleges that Defendants’ denial of the applications was arbitrary and capricious in violation of its substantive due process rights under the federal and state constitutions.
13
Zoning ordinanсes are entitled to a presumption of constitutionality if the validity of the zoning classification is fairly debatable.
Euclid v. Ambler Realty,
The substantive component of the Due Process Clause prohibits a government entity from applying a zoning classification that bears no relationship to “public health, safety, morals, or general welfare.”
Euclid,
a. BFI’s property interest
As the standard above reflects, BFI must first establish that it had a valid property interest in some benefit protecta-ble by the Fourteenth Amendment at the time of the alleged deprivation.
Id.; see Greenbriar Village,
Defendants argue that BFI does not have a property interest in having its property rezoned. Citing
Banks County v. Chambers of Ga., Inc.,
Here, Defendants do not contend that BFI failed to submit the appropriate applications for the rezoning or SLUP. Nor does BFI argue that Defendants had no discretion to deny the rezoning; indeed, a review of the Zoning Ordinance reveals that approval was not mandatory.
See, e.g.,
DeKalb County, Georgia, Code of Ordinances § 27-841 (commissioners may approve or deny applications based on consideration of enumerated standards);
see also Dougherty County v. Webb,
*1351
BFI argues, however, that the property-interest at stake is -the right to dispose of waste in a landfill. Citing
Bass Plating Co. v. Town of Windsor,
b. Arbitrariness and capriciousness
Even if BFI claims some constitutionally protected property interest, Defendants’ denial of its applicаtions was not arbitrary and capricious as a matter of law and so did not amount to a substantive due process violation. “The relevant question for consideration is whether there existed a rational basis for [the denial] or, phrased in the alternative, whether the ... action bore no substantial relation to the general welfare.”
Greenbriar, Ltd. v. City of Alabaster,
BFI argues that “[t]here is a dispute' as to whether the Zoning Ordinance actually accomplishes its purpose of protecting public interests or that these interests in this case are genuine.” (PL’s Resp. to Defs.’ Mot. for Summ. J. at 12.) BFI takes issue with the particular information upon which the Commissioners relied in denying the applications. For example, some of the reports referenced at the public hearing were produced before the RCRA Subtitle D design requirements were implemented; these reports should not apply to Hickory Ridge, BFI argues, because it was designed in accordance with Subtitle D standards. As another example, BFI notes that the odor issues cited by residents were merely unsubstantiated allegations, and the County’s own Seminole Road landfill has ground water contamination problems. Moreover, BFI contends that it will have to reroute waste to other jurisdictions, which will cause additional burdens on air quality and roads and require increased energy consumption.
BFI is asking this Court to “weigh and reappraise the factors considered or ignored” by the Defendants.
Corn v. City of Lauderdale Lakes,
3. Equal protection
BFI alleges that Defendants’ conduct in denying the applications discriminated between BFI and other similarly situated entities in violation of BFI’s rights to equal protection under the Georgia and U.S. Constitutions.
16
Where, as here, no fundamental right or suspect class is involved, a plaintiff must show that (1) the plaintiff was treated differently from other similarly situated persons; and (2) the regulation is not rationally related to a legitimate government purpose.
Bannum, Inc. v. City of Fort Lauderdale,
a. Was BFI similarly situated to Waste Management?
BFI argues that Defendants treated BFI’s rezoning application differently from that of Waste Management because they characterized the Live Oak Landfill as a nonconforming use and they failed to reaffirm Live Oak’s compliance with zoning regulations prior to the issuance of Live Oak’s vertical expansion permit. The Court concludes that BFI was not similarly situated to Waste Management at the time BFI applied fоr rezoning. A review of the process for obtaining a vertical expansion illuminates this conclusion.
*1353 The requirements for obtaining a vertical expansion of a landfill are set forth in Georgia Code section 12-8-24, et seq. First, the property must be properly zoned. O.C.G.A. § 12-8-24(g). Second, if the property is properly zoned, the applicant must obtain written verification that the proposed facility complies with local zoning or land use ordinances and is consistent with the local, multijurisdietional, or regional solid waste plan. Id. Finally, prior to granting permission for a modification, the State must hold a public hearing. Id. After these steps are completed, the State may issue a permit to grant an expansion of a landfill. Id.
With respect to determining whether a property is in conformance with zoning, the EPD provides the additional rule:
(a) Zoning. The site must conform to all local zoningdand use ordinances. Written verification must be submitted to the Division by the applicant demonstrating that the proposed site complies with local zoning and land use ordinances, if any. This verification shall include a letter from the local government authority stating that the proposed site complies with local zoning or land use ordinances, if any. This verification shall be provided at the time of submission of a permit application and reaffirmed by the governmental authority prior to permit issuance.
EPD Rule 391-3-4-.05(l)(a).
It is undisputed that BFI was required to apply for rezoning and obtain a SLUP before it could obtain a verification letter from the County and pursue a vertical expansion permit. Waste Management was not so required because it applied for a permit before the 1999 Zoning Ordinance was enacted. These facts keep BFI and Waste Management from being similarly situated.
BFI emphasizes that after Defendants adopted the 1999 Zoning Ordinance, they did not reaffirm to the EPD that the site was properly zoned. BFI contends that this failure to reaffirm raises issues of fact. First, the Court notes that the EPD rule to which BFI cites does not impose any duty on a local government to issue a reaffirmation. Rather, reaffirmation appears to be a condition to obtaining a permit. There is no evidence that Defendants somehow wrongly caused Waste Management’s permit to issue; if the permit was wrongly issued at all, EPD-not Defendants-was the entity responsible because it did not require the applicant to obtain a reaffirmation. Second, Wastе Management applied for its expansion pri- or to the 1999 Zoning Ordinance; and because it was in compliance at the time of its application, it had a vested right to verification of that compliance, even at the time of reaffirmation.
See Banks County,
In contrast to Waste Management, BFI seeks a rezoning subsequent to the enactment of the Ordinance in hopes of coming into compliance with local land use ordinances.
18
It is undisputed that BFI is
*1354
not entitled to written verification until it obtains a rezoning and a SLUP. As the Eleventh Circuit has explained, “a local government does not violate the equal protection clause by granting a permit to an applicant who has a nonfrivolous claim of entitlement under the pertinent legislation and by denying a permit to another applicant who is clearly unentitled to it: the two applicants are not similarly situated.”
E & T Realty,
b. Was BFI similarly situated to the County?
BFI also argues that the County’s landfill is similarly situated to BFI’s landfill because the County is operating as a “competitor in the public domain.” This argument overlooks the significant differences between privately and publicly operated landfills in Georgia. First, state law imposes upon the County an obligation to assure adequate solid waste handling for its citizens. O.C.G.A. § 12-8-31.1. No similar obligation is imposed upon BFI. Second, it is axiomatic that counties using property for governmental purposes are immune from their own zoning regulations.
Macon Ass’n for Retarded Citizens v. Macon-Bibb County Planning & Zoning Comm’n, 252
Ga. 484,
Accordingly, Defendants’ Motion for Summary Judgment is hereby GRANTED as to BFI’s equal protection claims.
J. Do'rmant Commerce Clause
In its Complaint, BFI alleges that “the denial оf the Applications discriminates against interstate commerce and imposes a burden on interstate commerce that is clearly excessive in relation to the putative local benefits.”
(E.g.,
Compl. ¶¶43, 51.) BFI thus argues that the Zoning Ordinance, as applied to its applications, violates the dormant Commerce Clause.
20
The Commerce Clause vests Congress with exclusive authority to regulate commerce among the states.
Gibbons v. Ogden, 22
U.S. (9 Wheat.) 1,
Defendants argue that their decision (in denying the applications) has not placed a burden on interstate commerce different from that on intrastate commerce; under the Pike balancing test, there would thus be no constitutional violation. See id. Defendants further point out that in denying BFI’s request to rezone, the Board did not place any conditions on where BFI could haul waste. Nor do Defendants restrict BFI or any private landfill operator from hauling waste inside or outside the state. As such, there is no record evidence that Defendants have imposed a burden on interstate commerce:
In response, BFI concedes that the Pike balancing test provides the applicable framework for these facts. However, BFI contends that it “will show at trial that the effect on interstate commerce is excessive in relation to the putative public benefits.” (PL’s Resp. to Defs.’ Mot. for Summ. J. at 15.) BFI explains that the waste handled by private haulers will have to be routed to other jurisdictions because the County refuses to take out-of-state waste in its landfill or allow existing private solid waste disposal facilities to continue to operate in the County. Because the County landfill does, not take out-of-state waste, Waste Management has “some additional life span,” and BFI has • only two to three years instead of eight as a result of not being able to vertically expand, BFI concludes that the Zoning Ordinance has the effect of eliminating landfill space that could receive out-of-county waste. BFI therefore argues that the Zoning Ordinance has the same effect as an outright ban on out-of-county waste. And although the unavailability of one landfill may not place a large burden on interstate commerce, BFI argues that if all Georgia counties adopted Zoning Ordinances like Defendants’, the cumulative impact would be disastrous on industry. Finally, BFI states that Defendants could have achieved their legitimate objectives with a lesser impact on interstate activities, such as con *1356 ditioning vertical expansion on provisions that would improve the area. 21
BFI relies on
Diamond Waste, Inc. v. Monroe County,
Although the principles expressed in Diamond Waste are relevant here, the case is distinguishable because the application of the Zoning Ordinance in this case did not involve an “absolute ban” on waste. It is undisputed that in denying BFI’s applications, Defendants did not impose any requirements or conditions upon BFI as to how it operates and manages Hickory Ridge. Although BFI has chosen to reroute some waste to other facilities outside the County, it could just as easily have chosen to re-route more waste to Hickory Ridge. BFI has always known that Hickory Ridge would eventually reach capacity, and therefore Defendants’ denial created no change in the status quo. This case is also distinguishable because BFI has not made the evidentiary showing that supported the Diamond Waste decision. BFI states that it will show at trial that the burdens on interstate commerce outweigh the local benefits, but Defendants’ Motion for Summary Judgment requires BFI to make some showing now. BFI has failed to meet its burden of coming fоrward with evidence to show genuine issues of material fact.
The facts here make this case closer to
Clarkco Landfill Co. v. Clark County Solid Waste Management District,
Similarly here, it is undisputed that Hickory Ridge takes waste from within and without the County’s borders and has not been prohibited from continuing to do so. It is also undisputed that Live Oak is available to take waste from within and without the County. Like the plaintiff in Clarkco Landfill, BFI may eventually be unable to take any waste from anyivhere at Hickory Ridge; this result may have a commercial impact, but it does not create an excessive burden on interstate commerce. Although BFI argues that eventually the private landfills will close and there will be no place in the County to landfill municipal solid waste from outside the County, that scenario does not represent the current circumstances and is not ripe for review. It may be, for example, that another landfill in the County becomes able to accept municipal solid waste, or even that BFI submits another rezoning application in the future that will be granted. See DeKalb County Code of Ordinances § 27-844 (successive applications for amendments may be made after twenty-four months or earlier if allowed by board of commissioners); id. § 27-876 (same for SLUP applications).
Based on the foregoing, the Court GRANTS Defendants’ Motion to Dismiss as to BFI’s Commerce Clause claims.
B. Sherman Act
In Count IV, BFI claims that Defendants’ actions wеre taken “pursuant to a conspiracy to monopolize and attempt to monopolize the municipal solid waste market in the DeKalb County region.” (Compl. Count IV ¶ 58.) Defendants contend that the County is shielded from Sherman Act claims because it enjoys state action immunity. The U.S. Supreme Court developed state action immunity in
Parker v. Brown,
Here, the Georgia Constitution authorizes DeKalb County to provide “[gjarbage and solid waste collection and disposal.” Ga. Const, art IX, § 2, ¶ 3(a)(2). The Georgia Comprehensive Solid Waste Management Act (“GCSWMA”) enables solid waste management authorities, such as that of DeKalb County, to enter into agreements “for an exclusive right or rights in any authority with respect to such solid waste, including, but not limited to, the exclusive right to collect, acquire, ... or dispose of discardеd solid waste.” O.C.G.A. § 12-8-51(b). The exercise of
*1358
this power is done “pursuant to state policy.”
Id.
§ 36-65-1. Further, the Georgia legislature has expressed its intent “clearly” and “affirmatively” “that in the exercise of such powers, such local governing authorities shall be immune from antitrust liability to the same degree and extent as enjoyed by the State of Georgia.”
Id.
§ 36-65-2. These provisions evidence “Georgia’s express contemplation of municipal anticompetitive conduct.”
McCallum,
BFI does not contest these conclusions. However, BFI relies on
Pine Ridge Recycling v. Butts County,
C. Immunities
Defendant County Commissioners contend that they are entitled to the following immunities: (1) legislative immunity; (2) qualified immunity; and (3) official immunity. BFI responds that it seeks relief from Defendant County Commissioners only in their official capacities.
(See
Pl’s Opp’n Br. at 32-34.) Thus, the Court does not address legislative, qualified, or official immunity.
See Bd. of County Comm’rs v. Umbehr,
All Defendants-the County Commissioners in their official capacities and the County-contend they are entitled to sovereign immunity as to the state-law claims.
See
Ga. Const, art. I, § 2, ¶ 9(e). This argument overlooks the types of relief sought by BFI. Georgia courts recognize an exception to sovereign immunity where
*1359
a рlaintiff seeks injunctive relief against the state or a public official.
Int’l Bus. Machines Corp. v. Evans,
Conclusion
The Court hereby DENIES Defendants’ Motion to Strike the Written Report of Plaintiffs Engineer [38-1], The Clerk is DIRECTED to remand BFI’s claims of takings under the Georgia and U.S. Constitutions, and inverse condemnation, to the Superior Court of DeKalb County, Georgia. The Clerk is DIRECTED not to close this case until further Order of this Court. The parties are ORDERED to submit a status report to this Court within six months of the date of entry of this Order. Defendants’ Motion for Summary Judgment [26-1] is hereby GRANTED as to all claims except for those being remanded.
Notes
. There are three municipаl solid waste landfills in the County: Hickory Ridge, Live Oak (operated by Waste Management), and the County-owned Seminole Road Landfill. Hickory Ridge and Live Oak are in industrial areas, while Seminole Road is located in a residential area.
. Hickory Ridge is a Subtitle D landfill under the Resource Conservation and Recovery Act (RCRA). The Subtitle D standards were issued in 1991 under the Hazardous and Solid Waste Amendments to RCRA. See 42 U.S.C. §§ 6941-49a.
. A detailed discussion of this procedure is set forth infra Part III.A.3.
. The record before the Court includes a transcript and videotape of the public hearing on BFI's Rezoning Application and SLUP Application held February 26, 2002. The Court cites to the transcript as "Tr. at_"
. BFI's citation to the Michael Dep. at 20 does not support this contention. Numerous of BFI's citations to record evidence do not support the propositions for which they are cited. Although the Court has attempted to locate such evidence, it is not the Court’s duty to comb the record to attempt to find reasons to deny a motion for summary judgment.
Powers v. CSX Transp., Inc.,
. Although the parties appear to dispute whether BFI and DeKalb County compete, the evidence to which BFI cites suggests-contraiy to BFI's assertion-that the two entities do not compete. (See Malone Dep. at 46 (“We do not compete.”).) Indeed, Defendants cite that same testimony in support of its assertion that the entities do not compete. (See also Carpenter Dep. at 54 (Seminole Road landfill takes trash only from within DeKalb County); Kaufmann Dep. at 62 (Seminole Road landfill is not in competition with BFI "as of this moment”).)
. The deposition testimony cited by Defendants for this explanation supports only the fact that Waste Management’s application was made prior to the Zoning Ordinance's adoption; the testimony does not explain that Waste Management’s site was in compliance with then-current zoning laws. (See Gray Dep. at 21; Malone Dep. at 89.) See supra n. 4 (court need not comb record).
.BFI denies this statement in its Response to Defendants' Statement of Facts but provides no explanation of its denial and does not cite any supporting evidence. Local Rule 56.1B(2) provides, "[a]ll material facts contained in the moving party’s statement which are not specifically controverted by the respondent in the respondent's statement shall be deemed to have been admitted.” N.D. Ga. Local R. 56.1B(2).
. BFI has re-filed these exhibits using different exhibit Iétters than those accompanying its Response to Defendants' Motion for Summary Judgment. To avoid confusion, the Court refers to the exhibits according to the exhibit letters in the Response.
. In
Eide v. Sarasota County,
. Because this is a court of limited jurisdiction, the Court must inquire into the existence of subject matter jurisdiction
sua sponte,
even though the parties have not challenged it.
Rembert v. Apfel,
. Some courts appear to treat substantive due process and equal protection claims arising out of the same facts as takings or inverse condemnation claims as similarly unripe.
E.g., Deniz v. Municipality of Guaynabo,
. For purposes of the summary judgment motion, BFI’s argument focuses only on federal constitutional standards. It thus appears that BFI has abandoned the state constitutional claim. Even if BFI has not abandoned this claim, the relevant analysis under the Georgia Constitution is similar to that for the U.S. Constitution and the Court reaches the same result with respect to any state substantive due process claim. See
Georgia Dep’t of Human Res. v. Sweat,
. For purposes of this discussion, the Court presumes that the denials of the zoning and SLUP applications constituted legislative decisions.
Cf. Greenbriar Village, L.L.C. v. Mountain Brook,
. Moreover, to the extent that Defendants responded or reacted to general public opposition, this fact alone is not enough to create a substantive due process issue. In
Greenbriar, Ltd. v. City of Alabaster,
[N]othing is more common in zoning disputes than selfish opposition to zoning changes. The Constitution does not forbid government to yield to such opposition; it does not outlaw the characteristic operations of democratic ... government, operations which are permeated by pressure from special interests.... The fact that town officials are motivated by parochial views of local interests which work against plaintiffs' plan and which may contravene state subdivision laws ... does not state a claim of denial of substantive due process.
Id.
at 1579 (quoting
Coniston Corp. v. Village of Hoffman Estates,
. BFI has not presented any independent argument or analysis regarding equal protection under the Georgia Constitution and is presumed to have abandoned it. Because the Georgia Constitution demands an analysis similar to that of the U.S. Constitution, however, the Court considers the following evaluation to apply to both claims. See Georgia Dep’t of Human Res. v. Sweat, 580 S.E.2d at 211 ("The protections provided in the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and in Article I, Section I, Paragraph II of the Georgia Constitution are construed to be consistent.").
. By emphasizing the "February 2 letter" and its notation that Live Oak landfill was a nonconforming use, BFI seems to argue that Waste Management should have been required to obtain a rezoning and SLUP before its permit was issued because the Zoning Ordinance went into effect prior to the permit’s issuance. Yet BFI has presented no evidence or legal argument lo show that Defendants should have required Waste Management to apply for rezoning and a SLUP prior to obtaining its permit.
. Thus, the two entities are further distinct in that Waste Management sought a written *1354 verification from Defendants while BFI is seeking rezoning and a SLUP.
. BFI arguеs that even if the government may be immune from zoning regulations, the County should be estopped from applying a higher standard to BFI's application than it applies to its own landfill. The doctrine of equitable estoppel is difficult to assert in this context because of the “forceful public reasons that militate against restricting the enforcement of [local] zoning ordinances.”
Town of Union v. Strong,
. BFI does not allege that the Zoning Ordinance, or Defendants' Comprehensive Plan, facially violate the dormant Commerce Clause.
. Although Defendants could have attached conditions to rezoning, the Court finds no support for the argument that Defendants-as opposed, for example, to the State-could place conditions on the vertical expansion.
. Even if the Court were to follow the Pine Ridge analysis, BFI’s Sherman Act claim would fail under its reasoning because BFI’s dormant Commerce Clause claims cannot survive summary judgment. See supra Part III.A.4.
. The parties do not argue whether a writ of mandamus is an available remedy in this case; given the Court’s disposition of the remaining claims, that issue is moot.
See generally Lindsey v. Guhl,