Stop the Dump sees victory in court ruling
by Jason Lowrey
Dec 19, 2013 | 1176 views | 0 0 comments | 18 18 recommendations | email to a friend | print
The movement dedicated to keeping a construction and industrial dump out of the Hodges Mine Road area won a battle Wednesday morning in the courtroom of Bartow County Superior Court Judge Shepherd Howell.

Howell ruled a 1994 court order forcing Bartow County to approve a Southern States LLC dump at the site was no longer in effect. Since the 1994 order, Bartow County government had been acting as though the dump was an existing operation. Skip Kazmarek, an attorney for the Stop the Dump organization, said the court order was forcing the county to operate in direct opposition of its own zoning laws that ban garbage dumps from the Hodges Mine Road area.

“The only question as far as we’re concerned is whether that 1994 [order], nearly 20 years later, gives the county permission to disregard its own zoning ordinance. That’s really the threshold of the issue. Is that 20-year-old [order], written at a different time under different circumstances, still tying the county’s hands? We argue the answer to that is no,” he said.

The 1994 court ruling, Kazmarek explained during his argument, came after the county attempted to ban dumps from the area in the 1980s. However, the county did not follow proper procedures in passing the ordinance and the Georgia Supreme Court struck the ordinance down in 1991. Kazmarek said Southern States performed a short-term buy and purchased the land during the period of time when the county did not have a zoning ordinance in place. The 1994 Bartow County Superior Court ruling forced Bartow County to acknowledge the dump as Southern States invested amounts of money in getting the needed permits to construct the landfill, Kazmarek continued. The company, then, had a vested right to build the landfill.

However, Kazmarek said Bartow County zoning ordinances consider nonconforming use and vested right as the same idea.

“In other words, the county ordinance itself equate a vested use — excuse me, a vested right — and what’s traditionally called nonconforming use. It says those two things are the same thing, for the purposes of this [case],” he said.

In turn, Kazmarek continued, the ordinance stated, “A nonconforming use or structure ... shall not be re-established after discontinuance for one year regardless of any reservation of intent not to abandon.”

As Southern States did not begin building the landfill or truck any garbage onto the property, Kazmarek said the company lost its vested interest and therefore could not consider the 2004 application to build a landfill on the Hodges Mine site as an existing project. The application to the state Environmental Protection Division even said it was a new application, Kazmarek said.

David Flint, representing Southern States, said the application did not have an option for existing projects, so the company was forced to call it a new application. He also said the main purpose of the project had not changed from a compacted garbage landfill to an industrial landfill, as the terminology had changed since the original 1980s-era application. He also noted EPD approved the permit in November.

Howell, however, said Southern States could not expect to have a vested interest and nonconforming status held on the property forever.

“I grant your motion to summary judgement to the limited extent that I am finding the 1994 order by Judge [Tom] Pope — with all due respect to Judge Pope, who I served with for 10 years — doesn’t grant the plaintiff in that case, the defendant in this case, doesn’t grant the right to a landfill in perpetuity forever. ... You don’t have the right to nonconforming use that you never used in forever, in perpetuity,” Howell said. “I mean, it’s illogical. ... Now, I’m not granting ... that the landfill has to be denied. ... I’m not saying the county has to deny the landfill. But I am saying that the county’s got to evaluate it.”

Flint pressed Howell to say when the 1994 ruling was no longer in effect, asking if it was no longer in effect the day of the hearing.

“I’m just saying the 1994 order does not apply on the county in 2004 and it’s not hanging over the county now,” Howell said.

Howell also ruled on three dismissal motions from Southern States. He did not dismiss a nuisance suite against the landfill, saying it could be a nuisance to the surrounding area even if it was properly permitted. Howell did dismiss two motions by Stop the Dump involving the Racketeer Influenced and Corrupt Organizations Act, as he did not see the pattern of criminal activity necessary to bring charges under the act.

After the hearing, Stop the Dump attorney Genevieve Frazier said she and Kazmarek were happy with Howell’s ruling, saying it would free Bartow County Commissioner Steve Taylor to make his own decision on whether or not to give the dump a permit.

“I feel comfortable. It is a very good, solid ruling. I think it makes sense. ... So Skip and I feel very solid about our position. I will tell you, as citizens of Bartow County and with the support of the current government — they supported us. So I want to give them credit for supporting us,” she said.

The county, represented by attorney Brandon Bowen throughout the proceedings, is named as a defendant in the suit. However, the county has not opposed Stop the Dump’s efforts.

Harry Pugliese, an organizer with Stop the Dump, said he welcomed Howell’s ruling.

“It feels good. Our county commissioner will be very happy with this decision, too,” he said.