Talkin’ trash

Af­ter 14 years of bat­tling in court, one com­pany’s chance to build a land­fill in New­ton County re­mains alive.

The Covington News - - News - GABRIEL KHOULI Staff Re­porter

A com­pany want­ing to build a pri­vate land­fill in New­ton County could yet get its way af­ter the Ge­or­gia Supreme Court this week over­turned a rul­ing that had ef­fec­tively ended any chance of a land­fill.

East Ge­or­gia Land and De­vel­op­ment Com­pany wants to build a pri­vate land­fill on 427 acres of land it owns off Fire Tower Road, just south­west of the county’s cur­rent nearly 90-acre land­fill on Lower River Road, but was told in 1997 that a land­fill was not al­lowed un­der the county’s zon­ing or­di­nance.

The Supreme Court es­sen­tially ruled that the county has yet to prove that it fol­lowed all the re­quired steps when it ap­proved a zon­ing or­di­nance in 1985. East Ge­or­gia Land’s (EGL) ar­gu­ment is that the zon­ing or­di­nance is in­valid be­cause it wasn’t prop­erly, and there­fore, of­fi­cially ap­proved.

EGL and New­ton County have been in­volved in sev­eral re­lated law suits since 1997, and Mon­day’s rul­ing by the Supreme Court en­sures the le­gal bat­tle will con­tinue as it sent the case back down to the Su­pe­rior Court.

“From our clients per­spec­tive, we’ve been try­ing to get a decision on the mer­its for over 14 years, we are grate­ful the Supreme Court has given us a road map and we in­tend to fol­low that roadmap to the end,” said At­lanta at­tor­ney Jimmy Paul Thurs­day.

“The client does re­main com­mit­ted to hav­ing a land­fill in New­ton County as­sum­ing it can get through the process. The ques­tion about pri­vate, the client

has al­ways been will­ing to con­sider go­ing into a public-pri­vate part­ner­ship with New­ton County, so it’s not as if the client is say­ing they must be pri­vate.”

New­ton County At­tor­ney Tommy Craig could not be reached for com­ment.

His­tory of the case

In 1997, EGL re­quested a let­ter from the county stat­ing EGL was per­mit­ted to de­velop a land­fill on its prop­erty; this is the first step in ap­ply­ing for a land­fill per­mit from the Ge­or­gia En­vi­ron­men­tal Pro­tec­tion Di­vi­sion.

The county re­fused to write a let­ter cit­ing a 1985 zon­ing or­di­nance the county said pro­hib­ited the land­fill from be­ing built; the land was and is zoned Agri­cul­tural-res­i­den­tial.

EGL then sued the county to force it to write a let­ter ap­prov­ing the use of the prop­erty for a land­fill. Dur­ing the course of that law­suit, the county learned that the orig­i­nal zon­ing or­di­nance, which was ap­proved dur­ing a May 21, 1985 Board of Com­mis­sion­ers meet­ing, was no longer at­tached to that meet­ing’s min­utes. It was de­ter­mined that the orig­i­nal copy of the 1985 or­di­nance was lost.

A signed copy of the orig­i­nal zon­ing or­di­nance was found in a cab­i­net in the zon­ing of­fice. At the county at­tor­ney’s re­quest, Pro­bate Court Judge Henry Baker filed a pe­ti­tion in Su­pe­rior Court to es­tab­lish this copy as the orig­i­nal or­di­nance un­der the Ge­or­gia Lost Records Act, since the orig­i­nal had been lost. (The county had to use this pro­ce­dure, be­cause it could not rely on oral tes­ti­mony from wit­nesses to prove that the zon­ing or­di­nance be­ing used was the same as the one orig­i­nally ap­proved in 1985.)

EGL felt this ac­tion was un­con­sti­tu­tional and il­le­gal for sev­eral rea­sons, pri­mar­ily be­cause there was not suf­fi­cient ev­i­dence to prove this copy was the same as the orig­i­nal zon­ing or­di­nance.

Af­ter hear­ing tes­ti­mony from for­mer Zon­ing Ad­min­is­tra­tors Brian Allen and John Byce, for­mer County Clerk A.T. Stubbs and a foren­sic doc­u­ment ex­am­iner, Su­pe­rior Court Judge Sa­muel D. Ozburn ruled in fa­vor of the county.

EGL ap­pealed this decision to the Ge­or­gia Supreme Court, which ruled in the county’s fa­vor in Jan­uary 2010.

In that case, one of EGL’S ar­gu­ments was the fact the rul­ing amounted to an un­con­sti­tu­tional tak­ing of prop­erty rights with­out com­pen­sa­tion, be­cause the or­di­nance didn’t ex­ist when EGL’S prop­erty rights vested in 1997 and now the land could not be used for the in­tended pur­pose of a land­fill. The Supreme Court said be­cause it was reestab­lish­ing an or­di­nance that ex­isted in 1985, no rights were vi­o­lated.

Is the 1985 zon­ing or­di­nance valid?

Fol­low­ing the Supreme Court’s rul­ing that the copy of the 1985 zon­ing or­di­nance was a valid copy, EGL and New­ton County then moved for­ward with their law­suit re­gard­ing whether the zon­ing or­di­nance was of­fi­cially in place and valid.

In its orig­i­nal case, EGL ar­gued the 1985 zon­ing or­di­nance was in­valid for two rea­sons:

the or­di­nance was not at­tached to the min­utes, as is re­quired by law

the zon­ing maps, which are de­signed to be used with the or­di­nance, had also not been prop­erly adopted by the county

In De­cem­ber 2010, Ozburn ruled in fa­vor of the county on both points. Ozburn said that the Supreme Court’s ear­lier decision that the re­place­ment copy of the or­di­nance was valid ren­dered moot EGL’S ar­gu­ment that the zon­ing or­di­nance was not at­tached.

EGL ap­pealed that rul­ing as well and this time the Ge­or­gia Supreme Court sided with EGL.

In or­der for a zon­ing or- di­nance to be in af­fect, it must both be ap­proved by the board of com­mis­sion­ers and prop­erly at­tached to the min­utes from that meet­ing. The Supreme Court es­sen­tially ruled that the county has never proved whether the or­di­nance was in fact at­tached.

In his orig­i­nal or­der from March 2009, which dealt only with whether the re­place­ment copy was valid, Ozburn wrote “that a zon­ing or­di­nance was adopted . . . on May 21, 1985, and ap­par­ently had been at­tached to the of­fi­cial min­utes of the meet­ing[,] . . . was sub­se­quently lost, and that a copy of the or­di­nance was found in the zon­ing of­fice in 1999. . .”

The Supreme Court sup­ported the decision by Ozburn, but again clar­i­fied this time around that its decision did not spec­ify whether the min­utes were at­tached or not. Jus­tice Ge­orge Car­ley wrote that the words “ap­par­ently had been at­tached” did not ac­tu­ally con­firm that whether the min­utes had been at­tached.

As a re­sult, Car­ley wrote that the lo­cal Su­pe­rior Court erred in de­cid­ing that the Supreme Court’s decision ren­dered moot the ques­tion of whether the county used a valid process to adopt its zon­ing or­di­nance.

The Supreme Court also ruled in EGL’S fa­vor, say­ing that the zon­ing maps passed by the county were not clearly marked.

In the 1985 zon­ing or­di­nance, there is ref­er­ence made to maps “bounded in one vol­ume en­ti­tled “Of­fi­cial Zon­ing Dis­trict Maps for New­ton County.” How­ever, ev­i­dence shows that the county did not ac­tu­ally have its cur­rent set of maps la­beled as “Of­fi­cial Zon­ing Dis­trict Maps for New­ton County,” which was sup­posed to be re­quired by the or­di­nance it­self.

The Su­pe­rior Court re­lied on oral tes­ti­mony by for­mer Zon­ing Ad­min­is­tra­tor John Byce, who said the orig­i­nal maps were cor­rectly la­beled, de­spite the fact the cur­rent maps were not. The Supreme Court said oral ev­i­dence can­not be used in that way and that such ev­i­dence was in­ad­mis­si­ble.

As a re­sult, the case has been sent back to the Su­pe­rior Court, where it must be heard again.

The Supreme Court’s rul­ing was a split decision, as two jus­tices dis­sented. In his dis­sent­ing opin­ion, Jus­tice Robert Ben­ham wrote that Ozburn had ruled cor­rectly. Ben­ham wrote that ev­i­dence heard in Su­pe­rior Court said the zon­ing or­di­nance had in fact been at­tached to the meet­ing min­utes, that Ozburn had ruled that this was the case and that the Supreme Court had con­firmed Ozburn’s rul­ing.

“Ap­pel­lant (EGL) can­not con­tinue to use the or­di­nance’s in­ad­ver­tent de­tach­ment from the min­utes as a means to draw out this four­teen-year-old lit­i­ga­tion and avoid, by a tech­ni­cal de­fault, the pos­si­bil­ity of an un­fa­vor­able out­come,” Ben­ham wrote.

Am­ber Pittman/the Cov­ing­ton News

New­ton County has a pub­licly-owned land­fill, but a pri­vate com­pany con­tin­ues its fight to open an­other one.

Google maps

The pro­posed 427-acre land­fill site is ad­ja­cent to the cur­rent 90-acre land­fill lo­cated off Fire Tower Road just out­side of Por­terdale.

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