Judge: Ordinance constitutional in landfill fight

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In what may be the end of an almost three-decade battle, retired Bartow County Superior Court Judge Shepherd Howell ruled Thursday a zoning ordinance at the middle of a landfill fight to be constitutional.Southern States, developer of a proposed landfill at Hodges Mine and Euharlee roads, filed a motion for summary judgment after the Georgia Court of Appeals remanded the case to the local level. In 1987, Bartow County zoning stated a sanitary landfill was an authorized use of the roughly 81 acres. It would take seven years and a court ruling for the county to issue Southern States a certificate of zoning for a sanitary landfill. According to arguments Thursday, Southern States never filed the paperwork with the Environmental Protection Division, instead reapplying in 2004 for a new permit for a construction and demolition landfill. The case would remain tied up in legal action until 2013 when Howell said the 1994 ordinance did not apply to the 2004 application. The county was instructed to revisit the issue under applicable zoning laws. Southern States appealed the ruling twice to the Georgia Supreme Court; both times the case was sent to the Court of Appeals, which remanded portions of the case back to Bartow County.At issue was a portion of section 6.1 of the 1993 zoning ordinance that allowed for a one-year window on nonconforming uses and the vested rights of the owner.David Flint, attorney for Southern States, said the ordinance is in direct conflict with state law.“Under Georgia law a vested right is a property right which can be abandoned only by the intent to abandon. The passage of time, in and of itself, nonuse, in and of itself, cannot divest one of a vested right, so this ordinance is unconstitutional on its face and as applied,” he argued. “The county has said well it’s moot because the ordinance has apparently been repealed. ... It is specifically important that it says the vested right is lost by the passage of one year regardless of the intent or expectation to abandon nonconforming use. This is directly contrary to the law that says you don’t lose your vested right unless you intend to. “... The fatal error Bartow County made in this ordinance, adopted in 1993, was they said the right is abandoned regardless of the intent.”Attorneys for Bartow County and homeowners in the area, however, said the issue was never the one-year stipulation and the issue of Southern States’ vested interest was not in question.“So this is not a situation where Southern States is trying to get a landfill started and just couldn’t quite make that one-year period. ... They did nothing to try to get that landfill going for 10 more years,” Brandon Bowen, county attorney, argued. “It may be one thing if they were trying and couldn’t get it done, but they weren’t even trying.”Kimberley Hale, attorney for the residents, echoed Bowen’s statements.“It’s not that one year was not enough time, your honor, it was because Southern States failed to act, and by failing to act, ... they consented to the lapse of their vested rights,” she said.Bowen asked Howell to consider the ramifications of ruling that vested rights, in essence, lasted forever.“I would ask the court also to step back and consider the import of the ruling Southern States wants. What would it mean if a vested right, once acquired, lasted forever until the vested rights holder released on the record and intentionally their vested rights? That would mean a hundred years from now a landfill could be put there,” he argued. “Our understanding of geology has changed a great deal in the last 20 or 30 years. The procedure for getting a landfill put in has changed a great deal in the last 20 or 30 years. To suggest that once those vested rights are obtained they can never be lost except by objective intent on the record to do so makes no sense.”Howell issued a ruling immediately following arguments, finding that the 1993 zoning ordinance is not unconstitutional on its face nor is unconstitutional as applied to Southern States. “So part of the question, is one year enough? Well, in some instances, one year may not be long enough. Would five years be enough? Would 10 years be enough? I’m not sure. Thirty days certainly would not ... be an appropriate time, but a one-year limit has been used before,” he said. “... The county has the right to make a determination as to what sort of zoning is appropriate. They make that determination; there may be some nonconforming uses. They know that. Well, if they are going to continue, they should start soon because the county around it is going to develop pursuant to the ordinance. The county and the people around it, I think, have the right to expect that, if there is going to be a nonconforming use, it ought to be. It ought to exist. It ought to be there, where everybody can see it, know what it is and develop their own property accordingly. I think the county has a significant public interest in placing a limit on when a nonconforming use must commence. A one-year period, I find, is not unconstitutional per se. “Now, would it be unconstitutional when applied to your client, Southern States? And, again, I have to say no because we’ve got to remember they had a vested right ... in 1994. We all know that. This case started in 1989. Southern States had already had five years to make their preparations to do what they needed to do to get the landfill started. Southern States got their permit in November 1994 from the county. ... And they still didn’t proceed with the landfill.”The victory is a comfort to residents — for the time being.“We’ve always felt this is the right thing to do 27 years ago, and 27 years ago, the Environmental Protection Division under Mr. Dunbar said, ‘I will help Southern States find a proper landfill site.’ ... So how long does the fight continue? And the community has changed. We represent that community now. It’s too late for them to change,” Harry Pugliese said. “... It would change that whole community’s industry from what it is — agriculture and M-1 mining. ... But to change it now, the whole community has changed. I think Southern States needs to change and go with the times.”The beef cattle farmer has no plans to leave the area.“I think my farm is saved; my wells are in tact. We have clean water for future generations to drink,” Pugliese said. “We’re staying there. We’re not moving.”Southern States has 30 days to appeal the decision, although it was not clear Thursday whether the appeal would go to the state Supreme Court or Court of Appeals.