Jay’s Re­cy­cling de­fense makes case in court

Lawyers ac­cuse county of act­ing un­fairly

The Covington News - - FRONT PAGE - By Rachel Oswald

Lawyers for the own­ers of a scrap metal yard on Rose­berry Road pre­sented the de­fen­dants’ side of the is­sue with the county Fri­day.

The de­fense ar­gued in New­ton County Su­pe­rior Court that the yard was grand­fa­thered into the county’s zon­ing or­di­nance and that the county was un­fairly tar­get­ing Jay’s Re­cy­cling by seek­ing an in­junc­tion against the busi­ness.

At the cen­ter of the de­fense of James Sharp­shair (owner of Jay’s Re­cy­cling) and Wayne Maloney (owner of the land on Rose­berry Road, which Sharp­shair leases for his busi­ness), is the fact that the yard con­sti­tutes a pre-ex­ist­ing, non­con­form­ing use of the county’s zon­ing or­di­nance and there­fore should be al­lowed to con­tinue its op­er­a­tion.

The de­fense rests on its claim that Maloney and his fa­ther used the prop­erty pre­vi­ously to buy and sell scrap metal through­out the 1960s, up un­til the present day.

Ac­cord­ing to Mar­ian Eisen­berg, di­rec­tor of Plan­ning and De­vel­op­ment for the county, who was sub­poe­naed by the de­fense to tes­tify in court Fri­day be­fore Judge Eu­gene Ben­ton, for a busi­ness to con­sti­tute a non- con­form­ing use it must be in place and op­er­at­ing law­fully prior to the ex­is­tence of the zon­ing or­di­nance, which would oth­er­wise pro­hibit it.

The busi­ness must also be in op­er­a­tion con­tin­u­ously. If it closes for more than a year af­ter be­ing grand­fa­thered in then it can­not be re- open at a later date on the same piece of prop­erty. Ad­di­tion­ally af­ter be­ing grand­fa­thered in the busi­ness can not ex­pand its op­er­a­tion to any­thing larger than it was be­fore it was grand­fa­thered in.

At­tor­neys for the county pre­sented ev­i­dence that af­ter Sharp­shair took over the lease of Maloney’s land he greatly ex­panded the op­er­a­tion of the scrap yard, bring­ing in car crush­ers and pil­ing scrap metal forty feet high. In­cluded in the county’s ev­i­dence were ae­rial pho­to­graphs taken of Maloney’s land in 2003 and in 2007, af­ter Sharp­shair set up Jay’s Re­cy­cling.

“ It’s fairly clear that the use has been ex­panded to cover more area,” said Eisen­berg of the pho­to­graphs.

The de­fense brought up Homer Greer Holy­field, who op­er­ates a farm near Rose­berry Road. Holy­field tes­ti­fied that he had done busi­ness reg­u­larly with Maloney and his fa­ther through­out the years and that there had al­ways been scrap metal on the prop­erty since the 1960s.

How­ever when Ed­ward Tol­ley, at­tor­ney for New­ton County, asked Holy­field whether or not the op­er­a­tion of Maloney and his fa­ther came close to the size of the op­er­a­tion of Jay’s Re­cy­cling, Holy­field had to take a minute to think be­fore an­swer­ing.

“ I can guar­an­tee you there was a tremen­dous amount of steel there but it wasn’t piled up 20 feet deep,” Holy­field said.

Dur­ing the course of the day’s pro­ceed­ings de­fense at­tor­neys Mike Wa­ters and Bob Stans­field brought up to the stand own­ers of other scrap metal yards in the county, which had suc­cess­fully been grand­fa­thered into the county’s zon­ing or­di­nance to try to prove that the county was ar­bi­trar­ily en­forc­ing its or­di­nance against Jay’s Re­cy­cling.

“ New­ton County does not uni­formly en­force its or­di­nance,” Stans­field said. “ In or­der for the or­di­nance to be con­sti­tu­tional it has to be ap­plied in a uni­form nondis­crim­i­na­tory man­ner.”

Tol­ley dis­agreed with Stans­field’s in­ter­pre­ta­tion of the law.

“ Ba­si­cally he’s ar­gu­ing that un­less the county ar­rests ev­ery per­son who runs a stop sign, it can’t ar­rest any­body,” Tol­ley said.

On cross- ex­am­i­na­tion of the scrap yard own­ers Tol­ley drew dis­tinc­tions be­tween the op­er­a­tion of Jay’s Re­cy­cling and the op­er­a­tions of the other scrap yards namely that the other scrap yards had not ex­panded their op­er­a­tion since the new zon­ing or­di­nances were writ­ten whereas Jay’s Re­cy­cling had.

In June the county pre­sented its side of the case, ar­gu­ing not only that Jay’s Re­cy­cling did not meet the qual­i­fi­ca­tions of a pre­ex­ist­ing non- con­form­ing use, but that it con­sti­tuted a pub­lic nui­sance. As part of its case the county brought to the stand many of the res­i­dents of Rose­berry Road who tes­ti­fied the loud noise, dust and odors cre­ated by the scrap metal yard were greatly af­fect­ing their qual­ity of life.

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