Court up­holds 2007 BOC de­ci­sion to deny Ox­ford as­phalt plant

The Covington News - - Front page -

By Gabriel Khouli heavy in­dus­trial and a rock quarry and one as­phalt plant were al­ready lo­cated on Mar­ble Drive, but Ox­ford res­i­dents and city of­fi­cials were against the plant from the beginning, cit­ing con­cerns about traf­fic and pol­lu­tion. For­mer Ox­ford Mayor William Murdy and then Coun­cil­man Rose­berry col­lected more than 1,000 sig­na­tures op­pos­ing the plant, in large part be­cause of its prox­im­ity to the Vic­to­ria Sta­tion sub­di­vi­sion.

Sev­eral groups weighed in on the per­mit. The North­east Ge­or­gia Re­gional De­vel­op­ment Cen­ter ex­pressed con­cerns about in­creased traf­fic and air and wa­ter pol­lu­tion, which could be caused by po­ten­tial storm wa­ter runoff. De­spite those con­cerns, the New­ton County Plan­ning Com­mis­sion heard enough in fa­vor of the per­mit to make a 3-2 split rec­om­men­da­tion in fa­vor of the per­mit.

The BOC held a cou­ple of pub­lic hear­ings, where Ox­ford res­i­dents, city of­fi­cials and uni­ver­sity em­ploy­ees spoke in op­po­si­tion to the plant, while La­Farge rep­re­sen­ta­tives at­tempted to an­swer con­cerns and pro­vide pos­i­tive ev­i­dence of their own.

On Feb. 21, 2007 at the end of the sec­ond pub­lic hear­ing, the BOC voted 4-0 to deny the CUP, with Com­mis­sioner Earnest Sim­mons ab­stain­ing.

La­Farge filed a law­suit against the county on March 28, 2007, chal­leng­ing the county’s zon­ing or­di­nance, the BOC’s de­ci­sion and even the process by which the BOC had come to make its de­ci­sion.

La­Farge ar­gued that the county’s zon­ing or­di­nance was un­con­sti­tu­tion­ally vague, that there was in­suf­fi­cient ev­i­dence to deny the per­mit, and that the BOC’s ac­tions dur­ing and be­tween the pub­lic hear­ings had been un­law­ful un­der the Ge­or­gia Open Records Act.

John­son ruled against La­Farge on the first two chal­lenges, stat­ing that the zon­ing or­di­nance is con­sti­tu­tional, be­cause the or­di­nance con­tains some spe­cific cri­te­ria while giv­ing the com­mis­sion­ers dis­cre­tion. As far as the in­suf­fi­cient ev­i­dence case, John­son ruled that al­though La­Farge an­swered many of the con­cerns raised, the law only re­quires there to be some ev­i­dence in sup­port of the BOC’s de­ci­sion, which there was.

The process ques­tion, or due process, was more com­pli­cated. La­Farge ques­tioned sev­eral ac­tions, in­clud­ing Craig meet­ing with com­mis­sion­ers af­ter the first pub­lic hear­ing to ask how they would vote and why, which was ac­tu­ally re­quired by the county or­di­nance. The court ruled this was not a vi­o­la­tion.

The other ma­jor is­sues dealt with Com­mis­sioner J.C. Hen­der­son meet­ing with res­i­dents out­side of hear­ings to dis­cuss the is­sue, which La­Farge said was a vi­o­la­tion of the pub­lic hear­ing process, be­cause com­mis­sion­ers were not sup­posed to bring out­side in­for­ma­tion or bias to the hear­ings. How­ever John­son again ruled against La­Farge.

“This Court must be mind­ful of the fact that com­mis­sion­ers do not sit in a vacuum. A lo­cal leg­is­la­tor can­not be ex­pected to sim­ply for­get all out­side knowl­edge prior to a hear­ing or for that mat­ter, to close their ears to the con­stituents’ con­cerns,” the rul­ing states.

It went to ex­plain that the court can­not at­tempt to judge leg­is­la­tor’s mo­tives, but must rely on the facts pre­sented.

“The un­der­ly­ing mo­tive of an elected of­fi­cial is a rab­bit hole that a court must refuse to go down where the record is most suf­fi­cient to sup­port the an­nounced de­ci­sion of that body cou­pled with the ab­sence of fraud be­ing even al­leged,” the rul­ing con­tin­ued.

In the end, the court granted sum­mary judg­ment in fa­vor of New­ton County and or­dered each party to pay its own le­gal ex­penses.

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