Christopher R.

Hogle, #7223
Chelsea J. Davis, #16436
HOLLAND & HART LLP
222 S. Main Street, Suite 2200
Salt Lake City, Utah 84101
Telephone: (801) 799-5800
Facsimile: (801) 799-5700
crhogle@hollandhart.com
cjdavis@hollandhart.com

Attorneys for Plaintiff Moulding Investments LLC

IN THE FIRST JUDICIAL DISTRICT COURT

BOX ELDER COUNTY, STATE OF UTAH

MOULDING INVESTMENTS LLC, a Utah

limited liability company,

Plaintiff, COMPLAINT, PETITION FOR

REVIEW, AND JURY DEMAND
v.
Civil No._________________
BOX ELDER COUNTY, UTAH, a Utah
political subdivision; and JEFF HADFIELD, Judge ____________________
JEFF SCOTT, and STAN SUMMERS, in
their official capacity as Box Elder County Tier 3
Commissioners,

Defendants.

Plaintiff Moulding Investments LLC (“Moulding”), by and through its undersigned

counsel of record, hereby files this Complaint, Petition for Review, and Jury Demand against

Defendants Box Elder County, Utah, and Jeff Hadfield, Jeff Scott, and Stan Summers, in their

official capacities as Box Elder County Commissioners (collectively, “Defendants” or “Box

Elder”), and alleges as follows:

 NATURE OF ACTION

1. This is a civil action arising under the Utah Constitution, the United States

Constitution, and the Utah Code alleging violations of equal protection rights, and arbitrary and

capricious agency action related to Defendants’ denial of Moulding’s petition to rezone 225

acres of its private property to a solid waste zone.

PARTIES

2. Plaintiff Moulding is a Utah limited liability company duly registered and

licensed to do business in the State of Utah.

3. Defendant Box Elder County, Utah is a political subdivision of the State of Utah.

4. Defendant Jeff Hadfield is a County Commissioner in Box Elder County.

5. Defendant Jeff Scott is a County Commissioner in Box Elder County.

6. Defendant Stan Summers is a County Commissioner in Box Elder County.

JURISDICTION AND VENUE

7. This Court has jurisdiction over the state constitutional and statutory claims under

Utah Code Ann. § 78A-5-102(2) (original jurisdiction in all matters civil and criminal), Utah

Code Ann. § 17-27a-801(2)(a) (judicial review of county land use decisions), and Box Elder

County Code Land Use Management & Development Code (“Box Elder County Code”) 2-2-

080-F (judicial appeal of final decisions to amend the County’s zoning map).

8. Venue is proper in this district pursuant Utah Code Ann. § 78B-3-302(2) (actions

against public officers), Utah Code Ann. § 78B-3-303(1) (actions against a county), and Utah

Code Ann. § 78B-3-307(1) because all defendants reside in this district and the claims arose in

this district.

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 9. This action qualifies for a Tier 3 designation under Utah R. Civ. P. 26(c) because

the amount in controversy herein, including attorney fees and costs, is greater than $300,000.

GENERAL ALLEGATIONS

10. Moulding owns 2,200 acres of private property located approximately 8 miles

southeast of Snowville, Utah, in Hansel Valley. The property is currently unzoned.

11. On April 18, 2014, Moulding filed an application with the Box Elder County

Planning Commission to rezone 225 acres of his 2,200-acre property to a municipal solid waste

zone for the proposed Franklin Hill Regional Landfill (“Franklin Hill Landfill”). Moulding’s

rezone application is styled Z14-002.

12. The Franklin Hill Landfill will be constructed applying modern, efficient, and

environmentally protective design criteria and is designed to have a positive impact on Box Elder

County—fees generated from the landfill are expected to generate $400,000-to-$500,000 a year

net benefit to the County.

13. Additionally, the Franklin Hill Landfill is designed to be self-sufficient and have a

minimal impact on County resources—the landfill will be accessed by a private road, it will have

its own power and dust control systems, and Moulding has drilled its own water well on site and

constructed a pipeline with four water troughs for local livestock and wildlife use.

2014 Public Hearing Before the Planning Commission

14. The Planning Commission held a public hearing on Moulding’s rezone

application Z14-002 for the Franklin Hill Landfill on May 15, 2014.

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 15. At the public hearing, concerns were raised about, among other things, water

contamination, seismic activity, flooding, local wildlife, the location of the landfill, and traffic to

the site. Planning Commission Meeting Minutes, dated May 15, 2014 (Ex. A), at 5-12.

16. At Moulding’s request, rezone application Z14-002 was tabled on August 28,

2014, so that the concerns raised at the public hearing could be addressed by the appropriate

agency within the State of Utah Department of Environmental Quality (“DEQ”).

The State Landfill Permit

17. On April 18, 2014, Moulding filed an application with the State of Utah

Department of Environmental Quality, Division of Waste Management and Radiation Control

for a permit to operate the Franklin Hill Landfill as a Class I municipal solid waste landfill.

18. The intensive, five-year permitting process with the DEQ concluded on December

12, 2019, with the issuance of the Franklin Hill Regional Landfill Permit No. DSHW-2019-

014422 (the “State Permit”) (Ex. B).

19. The draft State Permit was subject to a 30-day public comment period, and a

public hearing was held on October 3, 2017, at the Commission Chambers at the Box Elder

County Courthouse. See Utah Dep’t of Envtl. Quality, Franklin Hill Statement of Basis

Document (“Statement of Basis”) (Ex. C) at 2.

20. Box Elder had a full and fair opportunity to participate in the permitting process

for the State Permit.

21. Public comments on the draft State Permit raised concerns about the landfill

affecting the local sage grouse population, attracting predators, contaminating ground water and

surface water, and being built in a seismically active area. Statement of Basis (Ex. C) at 4-6.

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 22. The Director of the Utah Division of Waste Management and Radiation Control

fully addressed the public comments and concerns in the Franklin Hill Regional Landfill

Statement of Basis Document, dated December 12, 2019. Statement of Basis (Ex. C) at 4-6.

23. In regards to the wildlife concerns, the Director responded that the Utah Division

of Wildlife Resources reviewed the landfill application and determined that the Franklin Hill

Landfill “will not jeopardize the continued existence of sage grouse or adversely modify habitat

critical to sage grouse” and that the State Permit includes a notification requirement if predators

are observed at the landfill site. Statement of Basis (Ex. C) at 4-5.

24. In regards to the water contamination concerns, the Director responded that

“[t]here has been no designation of a sole source aquifer in Hansel Valley” and that, based on

conditions contained in the State Permit, “leachate from the landfill in unlikely to contaminate

culinary water sources.” Statement of Basis (Ex. C) at 5-6.

25. The Director also noted in his response that the State Permit “requires that the

landfill be constructed in such a manner as to eliminate releases to ground water,” requires

Moulding “to construct run-on/run-off control to ensure that water contaminated by waste is

captured and managed at the landfill,” and requires ground water monitoring at the landfill to

detect releases from the landfill to the groundwater.” Statement of Basis (Ex. C) at 5-6.

26. In regards to seismic activity, the Director responded that Moulding “is required

to construct the landfill so that it satisfies the requirements for construction in a seismic impact

zone” and that, in his opinion, “the landfill meets the design requirements outlined in R315-302-

1(2)(b)(iii).” Statement of Basis (Ex. C) at 6.

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 27. The DEQ evaluated Moulding’s Class I landfill permit application as required by

Section 19-6-108 of the Utah Solid and Hazardous Waste Act and R315-301 through -320 of the

Utah Solid and Hazardous Waste Rules and determined that it was appropriate to issue a permit

for the Franklin Hill Landfill. Statement of Basis (Ex. C) at 1.

28. The final 75-page State Permit establishes several state-enforceable requirements

and design criteria that go beyond what Utah law requires in order to protect both the land

underlying the landfill and the surrounding property, including, among other things, surface and

groundwater protective measures, daily covers, gas monitoring, waste inspections, litter control,

and closure requirements. See, generally, State Permit (Ex. B).

2020 Planning Commission Meeting

29. The Box Elder Planning Commission held a meeting on Moulding’s rezone

application Z14-002 on August 20, 2020.

30. Under Box Elder County Code Section 2-2-060-A(2)(b),1 the County may

consider the following when making a decision on an application for a zoning map amendment:

1. Testimony presented at a public hearing or meeting; and

2. [P]ersonal Personal knowledge of various conditions and activities bearing on

the issue at hand, including, but not limited to, the location of businesses,
schools, roads and traffic conditions; growth in population and housing; the
capacity of utilities; the zoning of surrounding property; and the effect that a
particular proposal may have on such conditions and activities, the values of
other properties, and upon the general orderly development of the County.

1
Excepts of the Box Elder County Land Use Management & Development Code, Article 2 –
Administration and Enforcement are attached as Exhibit D.

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 31. Under Box Elder County Code Section 2-2-080-E, the County may consider the

following factors when deciding to approve or deny a zoning map amendment:

1. Whether the proposed amendment is consistent with goals, objectives and

policies of the County’s General Plan.

2. Whether the proposed amendment is harmonious with the overall character of

existing development in the vicinity of the subject property.

3. The extent to which the proposed amendment may adversely affect adjacent
property.

4. The adequacy of facilities and services intended to serve the subject property,
including, but not limited to, roadways, parks and recreation facilities, police
and fire protection, schools, storm water drainage systems, water supplies, and
waste water and refuse collection.

32. At the meeting, the Planning Commission determined to forward a

recommendation of denial to the County Commission on rezone application Z14-002.

33. In deciding to recommend denial on rezone application Z14-002, the Planning

Commission ignored credible testimony and evidence presented to it in violation of Box Elder

County Code Section 2-2-060-A, improperly applied the criteria contained in Box Elder County

Code Section 2-2-080-E, and, instead, based its decision on unsupported environmental findings

that were discredited by environmental experts within the DEQ.

34. The Planning Commission denied rezone application Z14-002 on the grounds that

the proposed Franklin Hill Landfill was located in an aquifer recharge area, the area was prone to

flash flooding, and the landfill site was a known seismic zone. See County Commission Meeting

Minutes, dated September 2, 2020 (Ex. E) at 3.

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 35. The Planning Commission did not identify or present credible evidence to support

its environmental findings, and the evidence contained in the State Permit and presented to the

Planning Commission directly contradicts these findings.

36. Moulding presented testimony and evidence to the Planning Commission that the

DEQ fully addressed the environmental concerns, including water contamination and seismic

activity concerns, during the state permitting process and determined that a landfill was

appropriate. See State Permit (Ex. B); Statement of Basis (Ex. C) 4-6.

37. Moulding also submitted two letters to the Planning Commission at the August

20, 2020, meeting in support of the Franklin Hill Landfill—one from the Wasatch Integrated

Waste Management District regarding its intent to participate with Moulding during the

construction and operation of the Franklin Hill Landfill, and another from the County

Commission of Weber County, a neighboring county, stating that Box Elder County’s alternative

landfill site at Promontory Point is not viable for Weber County and that the county is

“exceptionally satisfied” with the landfill services Moulding provides in Weber County. (Letters

to the Planning Commission (Ex. F).

38. The Planning Commission also denied rezone application Z14-002 on the grounds

that the Franklin Hill Landfill would adversely affect the adjacent properties, adversely affect the

I-84 corridor, and that there was not a need for the landfill. See County Commission Meeting

Minutes, dated September 2, 2020 (Ex. E) at 3.

39. The Planning Commission did not identify or present credible evidence to support

these findings.

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2020 County Commission Meeting

40. The County Commission held a meeting on September 2, 2020, at which the

Commissioners reviewed Moulding’s rezone application Z14-002.

41. Moulding requested 15 minutes to present at the meeting, but the Commissioners

granted it only five minutes to present.

42. Due to the limitation on its time to present, Moulding submitted an 11-page letter

to the County Commission prior to the meeting, which presented evidence that rebutted the

Planning Commission’s findings, contained a sworn declaration from Moulding’s President,

Randy Moulding, and attached a copy of the State Permit. See Letter to the County Commission

from C. Hogle, dated September 2, 2020 (“Moulding’s Letter to the County Commission”) (Ex.

G).

43. In addition to pointing out that the State Permit fully addressed the public’s

environmental concerns, Moulding’s Letter to County Commission further contradicted the

Planning Commission’s findings by explaining there can be no adverse effects on existing and

future development because there is no current or future development in Hansel Valley, that

there can be no adverse effects on the I-84 corridor because the landfill is in a topographic low

spot and cannot be seen from the road, and that the Franklin Hill Landfill fulfills a need within

Box Elder County for a cost-effective landfill. See Moulding’s Letter to the County Commission

(Ex. G), at 3-6.

44. The Commissioners, however, refused to read Moulding’s Letter to the County

Commission. See County Commission Meeting Minutes, dated September 2, 2020 (Ex. E) at 4.

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 45. Commissioners Hadfield, Scott, and Summers denied rezone application Z14-002

at the County Commission Meeting on September 2, 2020, based on the recommendation from

the Planning Commission and adopted the Planning Commission’s findings. See County

Commission Meeting Minutes, dated September 2, 2020 (Ex. G) at 4-5.

Promontory Point Landfill

46. The County Commission has treated the Franklin Hill Landfill differently than

another similarly-situated landfill located in Box Elder County at Promontory Point (the

“Promontory Point Landfill”).

47. The Promontory Point Landfill is located at the southernmost portion of Box

Elder County, within a half-mile from the Great Salt Lake, and consists of approximately 2,000

acres of land in Box Elder County.

48. The Promontory Point Landfill is located for access by rail and can only be

accessed by several miles of county road, which must be regularly maintained at the County’s

expense in order for the landfill to operate.

49. Due to the Promontory Point Landfill’s remote location, waste must be

transported several miles to reach the landfill.

50. In 2003, the owners of the Promontory Point Landfill petitioned the Planning

Commission for a conditional use permit to operate the Promontory Point Landfill as a

commercial landfill.

51. The Planning Commission held a public meeting on the Promontory Point

Landfill on June 19, 2003.

52. The proposed Promontory Point Landfill was strongly opposed by the public.

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 53. At the public hearing on the Promontory Point Landfill, concerns were raised

about, among others, access and public safety, environmental harm, blowing debris, the location

of the landfill, and traffic to the site. See Planning Commission Meeting Minutes, dated June 19,

2003 (Ex. H) at 4-10.

54. Despite the great public concern, the Planning Commission recommended

approval of the Promontory Point Landfill at the conclusion of the June 19, 2003, public hearing.

See Planning Commission Meeting Minutes, dated June 19, 2003 (Ex. H) at 11.

55. The County Commission approved the Promontory Point Landfill on July 22,

2003. See County Commission Meeting Minutes, dated July 22, 2003 (Ex. I) at 4-6.

56. On July 6, 2011, the County Commission adopted Ordinance 350, which created a

landfill corridor. A copy of the Box Elder County Land Use Management & Development Code

Construction & Municipal Waste Zones Ordinance 350 is attached as Exhibit J.

57. As enacted, Ordinance 350 in effect excluded the Promontory Point Landfill.

58. In January 2015, Box Elder County submitted a Letter of Intent to purchase the

Promontory Point Landfill, which Commissioners Hadfield, Scott, and Summers unanimously

approved. The County ultimately did not enter into the contemplated purchase agreement for the

Promontory Point Landfill. See Box Elder County Letter for Intent, dated January 2015 (Ex. K).

59. In mid-2015, Box Elder County and the Promontory Point Landfill intended to

enter into a County Host Fee and Services Agreement (“Profit Share Agreement”) with Strata

Renewable Resources, LLC (“Strata”), by which Box Elder County would own part of the

Promontory Point Landfill and the parties would share profits.

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 60. As part of the Profit Share Agreement, Box Elder County would facilitate power

generation and landfill project opportunities for Promontory Point Landfill and Strata by acting

as the sponsoring body politic. County Commission Meeting Minutes, dated August 5, 2015 (Ex.

L) at 4-5.

61. As part of the Profit Share Agreement, Box Elder County, the Promontory Point

Landfill, and Strata would agree to cooperate and not to compete against each other in order to

achieve shared goals.

62. As part of the Profit Share Agreement, Strata would create a subsidiary owned

60% by Box Elder County. See County Commission Meeting Minutes, dated August 5, 2015

(Ex. L) at 4-5.

63. Moulding informed Box Elder County that it believed that the Profit Share

Agreement was contrary to law and would seek legal redress if it proceeded to enter into the

agreement.

64. At a County Commission meeting on August 5, 2015, the County’s attorney

informed the Commissioners that the proposed Profit Share Agreement raised concerns about

constitutional violations. County Commission Meeting Minutes, dated August 5, 2015 (Ex. L) at

4-5.

65. Box Elder County later determined not to go through with the Profit Share

Agreement. Box Elder County, however, has continued to cooperate with Promontory Point

Landfill and acted to eliminate competition to Promontory Point Landfill posed by Moulding.

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 66. In 2016, while the Franklin Hill Landfill rezone application was still tabled, Box

Elder County proposed to rezone the Promontory Point Landfill to a solid waste zone in order to

comply with Ordinance 350.

67. On June 16, 2016, the Planning Commission recommended that the County

Commission approve the rezone of the Promontory Point Landfill. Planning Commission

Meeting Minutes, dated June 16, 2016 (Ex. M) at 3-4.

68. The Planning Commission did not enter findings when recommending approval

for the rezone of the Promontory Point Landfill. See Planning Commission Meeting Minutes,

dated June 16, 2016 (Ex. O) at 3-4.

69. Commissioners Scott, Summers, and Hadfield approved the rezone for the

Promontory Point Landfill on July 6, 2016, based on the recommendation from the Planning

Commission. See County Commission Meeting Minutes, dated July 6, 2016 (Ex. N) at 4.

70. In late 2016, Box Elder approved a $35 million, tax-free bond for the Promontory

Point Landfill that was later reduced to $16 million.

71. In 2017, the owners of the Promontory Point Landfill applied for a Class V permit

with the DEQ, which would allow the landfill to accept industrial and out-of-state waste.

Promontory Point later requested to withdraw the Class V permit in 2018 “until further notice.”

72. By March 2020, the Promontory Point Landfill had failed to make payment to

Box Elder County on its $16.3 million bond.

FIRST CAUSE OF ACTION

(Utah Const. Art. I, Sec. 24 – Uniform Operation of Laws)

73. Moulding incorporates by reference, and alleges in full, the allegations included

in the foregoing paragraphs as if fully set forth herein.

13
 74. Defendant Box Elder is a political subdivision of the State of Utah.

75. Defendants Hadfield, Scott, and Summers represent Box Elder in their official

capacities as County Commissioners.

76. The Declaration of Rights in the Utah Constitution provides that “[a]ll laws of

general nature shall have uniform operation.” Utah Const. Art. I, Sec. 24.

77. Defendants, under color of state law, deprived Moulding of its constitutional right

to uniform operation of the laws.

78. Defendants have treated Moulding differently from others similarly-situated and

have done so without any rational or legitimate basis.

79. Defendants had no reasonable basis for denying rezone application Z14-002 for

the Franklin Hill Landfill.

80. Moulding presented credible evidence in support of the rezone application Z14-

002 that contradicted Defendants’ grounds for denying the application, such that Defendants’

decision to deny the application was neither supported by substantial evidence, nor did it meet

the reasonably debatable standard.

81. Defendants considered and relied on factors outside the criteria contained in Box

Elder County Code Sections 2-2-060-A and 2-2-080-E, such that Defendants intentionally

treated Moulding differently from other similarly-situated applicants.

82. The Franklin Hill Landfill is similarly-situated with the Promontory Point Landfill

in that both are landfills located within Box Elder County, both landfills were publicly opposed

based on similar concerns, and both landfills were in effect excluded by Ordinance 350 when it

was enacted.

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 83. Despite evidence that the Franklin Hill Landfill meets the criteria contained in

Box Elder County Code 2-2-080-E more comprehensively than the Promontory Point Landfill by

being a more cost-effective waste management system, better located, more easily accessible,

and less burdensome on County resources, Defendants approved the rezone for the Promontory

Point Landfill and denied the rezone application for the Franklin Hill Landfill.

84. Due to its remote location, the Promontory Point Landfill must be accessed by rail

over several miles of county road, which must be regularly maintained by the County; the

Franklin Hill Landfill, however, will be accessed by a private road, is centrally located, and will

have its own power and dust control systems such that it will be self-sufficient and have a

minimal impact on County resources.

85. Additionally, due to its close proximity to the Great Salt Lake, the Promontory

Point Landfill poses a greater environmental threat to ecological systems and habitat than posed

by the proposed Franklin Hill Landfill, which will be constructed applying modern, efficient, and

environmentally protective design criteria as set forth in the State Permit.

86. Box Elder County has demonstrated clear preferential treatment for the

Promontory Point Landfill and taken action to eliminate competition in favor of the Promontory

Point Landfill, including, but not limited to, approving a multi-million-dollar bond for the

Promontory Point Landfill, seeking to enter into a profit share agreement with the Promontory

Landfill in 2015, and denying Moulding’s rezone application for the Franklin Hill Landfill.

87. Defendants had no conceivable legitimate or rational basis for treating the

Franklin Hill Landfill differently from the Promontory Point Landfill with respect to its rezone

application.

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 88. Defendants’ actions were not based on any legitimate government policy.

89. Upon information and belief, Defendants’ disparate treatment of the Franklin Hill

Landfill was motivated by illegitimate animus, including, but not limited to, the subjective ill-

will of Planning Commission Chairwoman Laurie Munns and other Box Elder County staff and

representatives against the Franklin Hill Landfill, Moulding, and Moulding’s President, Mr.

Moulding.

90. Defendants’ violation of Moulding’s constitutional rights, as set forth above, has

caused Moulding damages in an amount to be proven at trial to which Moulding is entitled.

91. Because the denial of Moulding’s rezone application Z14-002 resulted from a

violation of Moulding’s right to uniform application of the law, Moulding is entitled to an order

of permanent injunctive relief compelling Defendants to grant rezone application Z14-002.

SECOND CAUSE OF ACTION

(U.S. Const. Amendment XIV – Equal Protection)

92. Moulding incorporates by reference, and alleges in full, the allegations included

in the foregoing paragraphs as if fully set forth herein.

93. Defendant Box Elder is a political subdivision of the State of Utah.

94. Defendants Hadfield, Scott, and Summers represent Box Elder in their official

capacities as County Commissioners.

95. The Equal Protection Clause of the Fourteenth Amendment to the U.S.

Constitution provides that “[n]o state shall . . . deny any person within its jurisdiction the equal

protection of the laws.”

96. Defendants, under color of state law, deprived Moulding of its federal

constitutional right to equal protection of the laws.

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 97. Defendants have treated Moulding differently from others similarly-situated and

have done so without any rational or legitimate basis.

98. Defendants had no reasonable basis for denying rezone application Z14-002 for

the Franklin Hill Landfill.

99. Moulding presented credible evidence in support of rezone application Z14-002

that contradicted Defendants’ grounds for denying the application, such that Defendants’

decision to deny the application was not supported by substantial evidence in the record.

100. Defendants considered and relied on factors outside the criteria contained in Box

Elder County Code Sections 2-2-060-A and 2-2-080-E, such that Defendants intentionally

treated Moulding differently from other similarly-situated applicants.

101. The Franklin Hill Landfill is similarly-situated with the Promontory Point Landfill

in that both are landfills located within Box Elder County, both landfills were publicly opposed

based on similar concerns, and both landfills were in effect excluded by Ordinance 350 when it

was enacted.

102. Despite evidence that the Franklin Hill Landfill meets the criteria contained in

Box Elder County Code 2-2-080-E more comprehensively than the Promontory Point Landfill by

being a more cost-effective waste management system, better located, more easily accessible,

and less burdensome on County resources, Defendants approved the rezone for the Promontory

Point Landfill and denied the rezone application for the Franklin Hill Landfill.

103. Due to its remote location, the Promontory Point Landfill must be accessed by rail

over several miles of county road, which must be regularly maintained by the County; the

Franklin Hill Landfill, however, will be accessed by a private road, is centrally located, and will

17
have its own power and dust control systems such that it will be self-sufficient and have a

minimal impact on County resources.

104. Additionally, due to its close proximity to the Great Salt Lake, the Promontory

Point Landfill poses a greater environmental threat to ecological systems and habitat than posed

by the proposed Franklin Hill Landfill, which will be constructed applying modern, efficient, and

environmentally protective design criteria as set forth in the State Permit.

105. Box Elder County has demonstrated clear preferential treatment for the

Promontory Point Landfill and taken action to eliminate competition in favor of the Promontory

Point Landfill, including, but not limited to, approving a multi-million-dollar bond for the

Promontory Point Landfill, seeking to enter into a profit share agreement with the Promontory

Landfill in 2015, and denying Moulding’s rezone application for the Franklin Hill Landfill.

106. Defendants had no conceivable legitimate or rational basis for treating the

Franklin Hill Landfill differently from the Promontory Point Landfill with respect to its rezone

application.

107. Defendants’ actions were not based on any legitimate government policy.

108. Upon information and belief, Defendants’ disparate treatment of the Franklin Hill

Landfill was motivated by illegitimate animus, including, but not limited to, the subjective ill-

will of Planning Commission Chairwoman Laurie Munns and other Box Elder County staff and

representatives against the Franklin Hill Landfill, Moulding, and Moulding’s President, Mr.

Moulding.

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 109. Defendants’ violation of Moulding’s constitutional rights, as set forth above, has

caused Moulding damages in an amount to be proven at trial to which Moulding is entitled

pursuant to 42 U.S.C. § 1983 and its attorney’s fees incurred pursuant to 42 U.S.C. § 1988.

110. Because the denial of Moulding’s rezone application Z14-002 resulted from a

violation of Moulding’s equal protection rights, Moulding is entitled to an order of permanent

injunctive relief compelling Defendants to grant rezone application Z14-002.

THIRD CAUSE OF ACTION

(Utah Code Ann. § 17-27a-801 – Arbitrary and Capricious Agency Action)

111. Moulding incorporates by reference, and alleges in full, the allegations included

in the foregoing paragraphs as if fully set forth herein.

112. Moulding’s rezone application Z14-002 sought to amend the County’s zoning

map to rezone 225 acres of Moulding’s property located in Box Elder County.

113. Commissioners Hadfield, Scott, and Summers’ decision to deny Moulding’s

rezone application Z14-002 on September 2, 2020, constitutes a final decision.

114. Defendants’ decision to deny rezone application Z14-002 was arbitrary,

capricious, contrary to law, and unsupported by evidence in the record.

115. Rezone application Z14-002 met the relevant approval standards provided under

Box Elder County Code 2-2-080-E.

116. Defendants, however, relied on improper factors when deciding to deny rezone

application Z14-002, including, but not limited, unsubstantiated and purely speculative

environmental findings regarding the proposed Franklin Hill Landfill.

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 117. Moulding presented credible evidence in support of the rezone application Z14-

002 that demonstrated that the application met the criteria in Box Elder County Code 2-2-080-E

and contradicted Defendants’ grounds for denying the application.

118. The evidence presented to the County included, but is not limited to, evidence that

any potential environmental concerns were evaluated by environmental experts within the State

of Utah and resolved by the State Permit, evidence that neighboring properties would not be

negatively affected due to the remote and private location of the landfill site, evidence that the

Franklin Hill Landfill would not impact the views from I-84 due to the surrounding topography,

and evidence that the Franklin Hill Landfill is supported by neighboring counties.

119. The Planning Commission, however, ignored the evidence presented to it by

Moulding at the August 20, 2020, meeting and entered findings that directly contradicted this

evidence.

120. The Box Elder County Code Sections 2-2-060-A and 2-2-080-E do not authorize

the Planning Commission to deny a rezone application on the basis of alleged environmental

impacts, nor is it within the Planning Commission’s expertise to make environmental findings.

121. Moulding presented its evidence to the Planning Commission at the August 20,

2020 Meeting, to the County Commission Meeting on September 2, 2020, and also submitted a

letter to the County Commission enclosing a sworn declaration of Randy Moulding, as well as

other documentary evidence prior to the September 2, 2020 County Commission Meeting.

122. Commissioners Hadfield, Scott, and Summers refused to review or consider

Moulding’s Letter to the County Commission.

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 123. Because Defendants’ decision to deny rezone application Z14-002 was arbitrary

and capricious, and not supported by evidence in the record, Moulding is entitled to an order of

permanent injunctive relief compelling Defendants to grant rezone application Z14-002.

PRAYER FOR RELIEF

WHEREFORE, Moulding prays for relief against Defendants as follows:

1. That the Court award damages in favor of Moulding against Defendant Box Elder

County in excess of $300,000 and believed to be in the millions of dollars in an amount equal to

all losses sustained by Moulding as a result of Defendants’ deprivation of Moulding’s rights of

Equal Protection and uniform application of the law, in an amount to be proven at trial;

2. That the Court enter an order of permanent injunctive relief compelling

Defendants to grant rezone application Z14-002; and

3. That the Court award such other and further relief as the Court deems just and

equitable.

JURY TRIAL DEMAND

Pursuant to Rule 38 of the Utah Rules of Civil Procedure, Moulding demands a jury trial

on all the issues so triable.

DATED this 2nd day of October, 2020.

HOLLAND & HART LLP

/s/ Christopher R. Hogle

Christopher R. Hogle
Chelsea J. Davis
Attorneys for Plaintiff,
Moulding Investments LLC

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Plaintiff’s Address:

10485 West 900 South

Ogden, UT 84404
15493174_v3

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