Asphalt plant denial: Judge rules with county in lawsuit

COVINGTON - A lawsuit filed against Newton County and the Board of Commissioners over the 2007 denial of a conditional-use permit for an asphalt plant at a quarry on Marble Drive has ended in victory for the county.

Superior Court Judge Horace Johnson issued his final order in the case on Aug. 31, granting summary judgment in favor of Newton County.

"The litigation was concluded to Newton County's favor ... and I know there are some people in Oxford who will be very happy about that," County Attorney Tommy Craig told the board Tuesday night. "We are very pleased with the outcome."

Lafarge Aggregates Southeast Inc. filed suit in March 2007, a month after the conditional use permit was denied, alleging that commissioners violated a county ordinance by receiving evidence outside the public hearing and reaching a decision before all evidence had been presented. Lafarge alleged that the county violated due process and the Georgia Open Meetings Act and that the county zoning ordinance is unconstitutionally vague.

At the time it was under consideration, the controversial permit pitted more than 1,000 Oxford residents against the asphalt representatives in a full force showdown, with the threat of a lawsuit looming all the while. Oxford residents had threatened to file a Civil Rights suit if the permit was approved. The quarry is located adjacent to a residential area in the city limits populated mostly by minorities.

The threat of litigation on both sides was cited by County Attorney Tommy Craig when he halted a January 2007 public hearing after being informed of a requirement in the county's ordinance that commissioners adopt a written decision for any vote to be final.

At that time, he advised the board members to solicit their own experts to get answers to any questions they might have and to support their positions with evidence, and stated that the hearing would be continued to the next month's meeting.

Lafarge Attorney H. Wayne Phears alleged that the evidence presented at that hearing in February 2007 was not disclosed beforehand to allow for review, despite written reports being available ahead of time.

Further, Craig had already prepared a written decision prior to the meeting that contained references to testimony that would be given, according to the lawsuit.

At the time, Craig said the meeting was recessed for five minutes following testimony during which time board members deliberated in private to see if the prepared decision was still in keeping with the board's wishes.

Lafarge alleged the private meeting was a violation of the Open Meetings Act.

The suit also cited an article in the Atlanta-Journal Constitution quoting District 4 Commissioner J.C. Henderson, who said that even though the public hearing had been continued, Craig asked commissioners to let him know how they intended to vote and why.

Henderson was further singled out for his comments at a public meeting, in which he said that he would oppose the petition based on conversations with his constituents; observations he made while walking through the district; and premeditation concerning the selection of the location of the plant.

Johnson's order states that the law gives commissioners discretion in reviewing applications for conditional use permits; that the county's zoning ordinance is not unconstitutionally vague; that commissioners made their decision based on testimony and evidence presented; and that they did not violate the Open Meetings Act.

"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 known prior to a hearing or for that matter, to close their ears to their constituents' concerns," the ruling states.

In other news, Craig reported that the Georgia Supreme Court has refused to hear an appeal in an impact fee lawsuit against the county.

Madison Retail-Covington LLC, developer of the Kroger store on Salem Road, objected to the impact fees assessed to the store.

At issue was Madison Retail's claim that its development should have been defined as a shopping center rather than a supermarket under the county's Development Impact Fee Ordinance, entitling a refund of more than $100,000 in paid impact fees.

The nearly 79,000-square-foot Kroger is the anchor for the development, known as Covington Marketplace, which also includes 50,000 square feet of additional retail stores.

Madison Retail initially challenged the designation in 2007 through an administrative appeal, which was denied by the impact fee coordinator.

A subsequent appeal to the Board of Commissioners was denied as well, prompting Madison Retail to file a civil action in Newton County Superior Court.

After Johnson granted a summary judgment in favor of Newton County, Madison Retail appealed to the Georgia Court of Appeals. That appeal was dismissed earlier this year due to a violation of procedure on the part of Madison Retail.

Crystal Tatum can be reached at crystal.tatum@newtoncitizen.com.