                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1409


RICHARD S. GRIFFIN; GRIFFIN FARM & LANDFILL, INC.,

                Plaintiffs - Appellants,

           v.

TOWN OF UNIONVILLE, NORTH CAROLINA,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.     Robert J.
Conrad, Jr., Chief District Judge. (3:05-cv-00514-RJC-CH)


Argued:   May 13, 2009                     Decided:   July 27, 2009


Before NIEMEYER, Circuit Judge, C. Arlen BEAM,      Senior Circuit
Judge of the United States Court of Appeals        for the Eighth
Circuit, sitting by designation, and Joseph F.      ANDERSON, Jr.,
United States District Judge for the District of   South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: T. Jonathan Adams, HAMILTON, MOON, STEPHENS, STEELE &
MARTIN, PLLC, Charlotte, North Carolina, for Appellants. Thomas
Norfleet Griffin, III, PARKER, POE, ADAMS & BERNSTEIN, LLP,
Charlotte, North Carolina, for Appellee.     ON BRIEF: Mark R.
Kutny, Travis W. Moon, HAMILTON, MOON, STEPHENS, STEELE &
MARTIN, PLLC, Charlotte, North Carolina, for Appellant Griffin
Farm & Landfill, Inc.; R. Keith Johnson, R. KEITH JOHNSON, P.A.,
Stanley, North Carolina, for Appellant Richard S. Griffin.    G.
Nicholas Herman, THE BROUGH     LAW   FIRM,   Chapel   Hill,   North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Richard      Griffin      appeals        the     district         court’s   grant     of

summary     judgment       in    favor    of     the       Town    of    Unionville,    North

Carolina (“the Town”).            We affirm.



                                               I.

       In   1992,      Griffin     began       operating      a     demolition      landfill,

more accurately now known as a “land clearing and inert debris”

(LCID) landfill, pursuant to a permit issued by the Union County

Health Department.              The permit authorized the LCID landfill to

accept waste, limited to stumps, limbs, leaves, concrete, brick,

untreated wood, asphalt, uncontaminated earth, sand or rocks.

In 1993, Griffin obtained “prior approval” from Union County

(the   county)      authorizing          him    to     expand      his    landfill     by   ten

acres.      This       addition    was     authorized         as    a    “construction      and

demolition” (C & D) landfill.                   Griffin did not begin operating

the C & D landfill at that time, but received the prior local

approval     so     that    he    could        get     a    state       permit,    which    was

required.         In    1995,     the     state       natural       resources      department

issued Griffin an operational permit for the C & D installation.

This permit was amended and renewed by the state a number of

times through the year 2005.




                                                3
      In January 1997, the county approved Griffin’s application

to expand his landfill again.        In the summer of 1997, the county

changed   its   land   use    ordinance   to   require       that   a   landfill

operator obtain a special use permit (SUP) from the county, in

addition to the required state permits.           So Griffin applied for

a SUP and included all of his property—his then-existing LCID

and C & D landfills, as well as the proposed expansion—in the

SUP   application.       In    November   1997,        the   county     approved

Griffin’s request for a SUP.        The SUP allowed construction of a

“demolition landfill.” 1       The county land use ordinance in effect

at that time defined “demolition landfill” to include “debris

associated with the construction or demolition of housing or

buildings” and expressly prohibited industrial waste.                   The SUP

also required that any modifications to proposed uses on the

property covered by the SUP be pointed out to the county in

writing, as required by the county land use ordinance.                      This

ordinance   provided    that    insignificant     or    minor   changes     were

      1
        Part of the difficulty with reciting the facts in this
case is that the county continued to use the term “demolition
landfill,” while the state administrative regulations changed
what was known as a demolition landfill to an LCID landfill in
1993. At the time the SUP was granted, the county’s definition
of demolition landfill allowed waste authorized by the state-
defined LCID and C & D landfills.      J.A. 399; 15A N.C. Admin.
Code   13B.0101(11),  (22),   &  (23);   15A  N.C.  Admin.  Code
13B.0532(8).    When amended by the county in 1998, the term
“demolition landfill” exceeded what was allowed in an LCID and C
& D landfill by allowing industrial solid waste.



                                     4
permitted without formal written approval, but any changes of

significance had to be approved in the same manner as a new

application for a SUP.           It is undisputed that Griffin has never

applied to the county for an amendment or modification to the

1997   SUP.       Following     issuance       of   the    SUP    in    November       1997,

Griffin    retained       an   engineering      firm      to    perform    work    on    the

property and incurred expenses.

       At a June 1998 County Planning Board meeting, Griffin asked

the county to amend the definition of a demolition landfill in

the county’s land use ordinance to allow for the disposal of

nonhazardous industrial solid waste.                   The matter was considered

further and approved at a July 1998 public hearing.                           The crux of

the instant dispute is Griffin's assertion that this amendment

was    intended      to   retroactively        apply      to    Griffin's       1997    SUP.

Throughout this time, Griffin continued to have the engineering

firm prepare the landfill expansion for waste.

       In November 1998, the Town revived its corporate charter,

making    it   an    incorporated       municipality           within   the     county    of

Union and in the state of North Carolina.                              The current and

proposed       landfills       were     included       within       its       boundaries.

Nonetheless, because the Town did not have a land use ordinance,

the Town conferred jurisdiction on the county to regulate zoning

and    land    use   issues     until    October       2003      when     the   land     use

ordinance adopted in June 2003 became effective.

                                           5
      In July 1999, Griffin applied to the state for a permit

authorizing him to operate an industrial solid waste landfill on

his   property.       In    response,      in    September   2001,      the   state

informed Griffin that in order to operate the proposed landfill,

pursuant to North Carolina General Statute §§ 130A-294(b1)(3) &

(4), he would need local government zoning approval, and would

need to obtain a franchise from the local government.

      Griffin accordingly sought to obtain a local franchise, but

at that time, as previously noted, the Town did not have a land

use ordinance or a local franchise ordinance, having temporarily

ceded its authority on these issues to the county.                       Moreover,

although the county had a land use ordinance, it did not have a

franchise ordinance either, and thus Griffin never was able to

obtain a franchise from the county.

      In March 2003, Griffin asked the Town council to adopt a

franchise ordinance.          The Town council passed a "Solid Waste

Franchise Ordinance for the Town of Unionville" in June 2003.

The franchise ordinance allowed for C & D and LCID landfills

only.    Also in June 2003, the Town adopted a Land Use Ordinance,

to be effective October 1, 2003.                The definition of “demolition

landfill”    in     the    Town’s   land    use     ordinance     was   the   same

definition as the county’s 1998 amended definition—it authorized

the     inclusion    of    industrial      solid    waste    in   a     demolition



                                        6
landfill, creating a conflict with the franchise ordinance which

only allowed C & D and LCID landfill waste within the Town.

      Griffin and the Town entered into a franchise agreement in

February 2004.         The franchise agreement, in keeping with the

ordinance,     only        authorized    Griffin        to     operate       landfills

accepting C & D and LCID waste, not industrial solid waste.

After obtaining the franchise, Griffin also confirmed, by way of

a letter from the Town's land use administrator, that his 1997

county-issued SUP was still valid in the Town.                     Armed with these

two   pieces   of   information       (the     franchise     and     the    presumably

valid SUP), Griffin applied for and received an amended permit

from the state for the continued operation of his C & D landfill

in March 2005.

      At this point, Griffin had official state authorization to

operate a C & D landfill and though the record is not entirely

clear on this point, he either did not need state authorization

for an LCID, or he had the requisite LCID state permit.                              See

J.A. 274. However, he still did not have state authorization to

operate an industrial solid waste landfill.                     So in June 2005,

Griffin   sought       a     franchise   from     the    Town        to    operate    an

industrial     solid       waste   landfill.      As    part    of    his    proposal,

Griffin asked the Town to amend the franchise ordinance to allow

for such a landfill.           Various public meetings and requests for

information ensued.          Instead of amending the franchise ordinance

                                         7
as Griffin suggested, in May 2006, the Town amended the land use

ordinance to delete from the definition of a demolition landfill

the   term    "industrial      solid      waste."           This    action      effectively

denied    Griffin's       request        for       a   franchise         to     operate     an

industrial     solid     waste    landfill.            Because      he    never       obtained

local approval, Griffin did not seek a permit from the state to

operate an industrial solid waste landfill, and instead brought

the current action.

      In his complaint, Griffin alleged that the Town's actions

denied him due process and equal protection under federal and

North Carolina law, and that he had a vested right to operate

the   industrial       solid     waste    landfill.            Griffin         also    sought

specific performance and declaratory relief that the ordinance

was unconstitutional.            He alleged that the Town violated his

rights by failing to amend the franchise ordinance because he

had   a   common   law    vested    right         to   construct         and    operate   the

installation as an industrial solid waste landfill and he spent

over $750,000 in engineering fees to prepare the landfill.                                  On

cross-motions for summary judgment, the district court granted

summary judgment to the Town, finding that Griffin did not have

a vested right to operate an industrial solid waste landfill.

The   court     also      refused        to       declare     the     local       ordinance

unconstitutional.         Griffin        appeals       the    rulings         regarding    his



                                              8
vested right to operate an industrial solid waste landfill and

specific performance.



                                               II.

      Our review on appeal from the district court's grant of

summary judgment is de novo.                   Bryant v. Bell Atl. Md., Inc., 288

F.3d 124, 132 (4th Cir. 2002).

      Under     North       Carolina       law,      whether    Griffin     possessed       a

vested   right     to       a    franchise       for   an    industrial     solid      waste

landfill      turns      on          whether     (1)   he      has   made      substantial

expenditures; (2) the expenditures were made in good faith; (3)

the expenditures were made in reasonable reliance on and after

the issuance of valid governmental approval; and (4) he would be

harmed   by    a   change        in     governmental        requirements.       Browning-

Ferris   Indust.       Of       S.    Atl.,    Inc.    v.    Guilford    County       Bd.   of

Adjustment, 484 S.E.2d 411, 414 (N.C. Ct. App. 1997).

      Griffin's         vested          rights       claim      is   that       he     spent

approximately $750,000 in connection with his application to the

state for a permit to operate an industrial solid waste landfill

after relying upon (1) the 1997 SUP issued by the county, (2)

the   county's     1998         amendment      to    the    definition    of    demolition

landfill allowing industrial solid waste in those landfills, and

(3)   the     Town's    2004          letter   advising      Griffin     that    it    would

recognize Griffin's 1997 SUP.                    Griffin alleges that, by virtue

                                                 9
of    these      authorizations,      he        received     specific       and     valid

approvals from the county and the Town to construct and operate

an industrial solid waste landfill.

      It    is      undisputed    that      Griffin        has    made     substantial

expenditures in pursuit of operating the industrial solid waste

landfill.        The remaining prongs from Browning-Ferris require us

to examine whether Griffin's expenses were made in good faith

and with reasonable reliance upon purported government approval

for the project.

      We find that Griffin did not make these expenditures in

good faith or in reasonable reliance upon the Town, county or

state approval for the project.                   When Griffin applied to the

county for the SUP, there was no mention of industrial solid

waste in the application or in the resulting permit.                          In fact,

the   SUP     was   issued   at   a   time       when   the      county’s    land    use

ordinance      expressly     prohibited         landfills        from    disposing    of

industrial solid waste.           Under North Carolina law, the SUP is

limited by its own terms to those uses presented to the county

in obtaining it.        Westminster Homes, Inc. v. Town of Cary Zoning

Bd. of Adjustment, 554 S.E.2d 634, 638 (N.C. 2001).                               Griffin

specifically represented to the county that his landfill would

be used to dispose of construction and demolition waste.                              He

also told the county board that his construction and demolition

landfill operated under a valid state permit for this type of

                                           10
landfill and that no "liner" was required to contain the waste.

A liner would have been required for an industrial solid waste

landfill.

       Finally,    and    perhaps      most      importantly,       Griffin    did   not

apply to the county or the Town to amend or modify the 1997 SUP.

Griffin instead chose to rely upon the 1998 amendment to the

county's definition of a demolition landfill as a retroactive

“amendment”       to   his     SUP.         However,   the     county's       land   use

ordinance, and later the Town's, required specific procedures to

amend or modify the terms of a SUP, and these actions were not

taken   by     Griffin.        Even    in    the   2004     letter    from    the    Town

recognizing the continued validity of the 1997 SUP, the letter’s

author reminded Griffin that any changes from the issued SUP

would require approval of an amended permit by the Town.                             The

SUP did not authorize Griffin to operate an industrial solid

waste landfill.        Accordingly, Griffin cannot validly argue that

his county-issued 1997 SUP permitted him to rely in good faith

upon    the    proposition      that    he    would    be    able    to   operate     an

industrial solid waste landfill.

       Nor did Griffin undertake his expenditures in reasonable

reliance upon Town, county, or state government actions.                             The

record reflects that he did not obtain all of the government

permits       necessary      under    North      Carolina     law    to   operate     an

industrial solid waste landfill.                   Although arguably overkill,

                                            11
three authorizations are required to construct and operate an

industrial solid waste landfill: local zoning approval, a local

government       franchise,      and       a    permit     from     the    State    of    North

Carolina.    N.C. Gen. Stat. Ann. §§ 130A-294(b1)(3) & (4). 2

     It is doubtful that Griffin obtained any of the required

state permits for an industrial solid waste landfill.                               The only

argument that he obtained zoning approval is that the SUP was

retroactively          amended    when          the     county      board       changed     the

definition of a demolition landfill to include industrial solid

waste.      In    light     of   our       previous        discussion,      however,       this

argument     carries        little         weight.            Further,      the    franchise

agreement with the Town in 2003 did not contain authorization

for industrial solid waste.                     Likewise, the permit he received

from the state only allowed him to continue to operate his C & D

landfill,    not       an   industrial          solid      waste    landfill.        None    of

Griffin’s successful permit or franchise applications requested

specific    authorization         to       operate       an    industrial       solid     waste

landfill.     Where multiple permits or governmental approvals are

required    for    a    project,       a       landowner      has   no    vested    right    to

complete     that       project        unless         he      makes       his     substantial

expenditures in good faith reliance on and after receiving all

     2
       We reject Griffin’s arguments that this was either not the
applicable statute or that his operation should be excepted from
the statute’s requirements.



                                                 12
requisite permits or other required approvals.                  See, e.g., PNE

AOA Media, L.L.C. v. Jackson County, 554 S.E.2d 657, 663 (N.C.

Ct.   App.    2001)    (holding     that     expenditures       made    prior   to

acquiring necessary permits are not made in good faith reliance

upon those permits, and company did not have a vested right to

erect a billboard on a state highway).                  Because Griffin never

obtained     the    required   permits       for   industrial      solid    waste

landfills,     he   could   not     have    expended    funds    in    reasonable

reliance upon such permits.



                                      III.

      Though Griffin has been operating landfills in Union County

and   the    Town   since   1992,   his     landfills    have   never    accepted

industrial solid waste, and he has never obtained a valid permit

to do so.       Therefore, he has no vested right to operate this

category of landfill.          The decision of the district court is

affirmed.

                                                                         AFFIRMED




                                       13
