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County wins part of long landfill battle

COVINGTON -- The Supreme Court of Georgia has ruled in favor of Newton County in a legal dispute with a company that wants to develop a private landfill.

The court recently ruled that the county may establish a copy of the 1985 zoning ordinance as the original ordinance, which was lost. EGL had been fighting that in hopes that the county would not be able to use the document in separate litigation filed by EGL over the county's refusal to issue a letter stating that its proposed landfill complied with the zoning ordinance.

In 1997, EGL requested a letter from the county verifying that a proposed landfill that would be located just south of the current county landfill on Lower River Road was in compliance with the 1985 zoning ordinance. The county refused to issue the letter on the grounds that a landfill was not a permitted use under the ordinance.

EGL tried to get an order from Superior Court to compel the county to issue the letter. During court proceedings, it was determined that the ordinance was not attached to the minutes of the Board of Commissioners meeting when it was passed.

At the request of the county, Probate Court Judge Henry Baker filed a petition to establish a copy of the ordinance. Georgia law allows for the Superior Court to establish copies when public records have been lost and "such records shall be in all respects evidence as the original records would have been."

According to court documents, the minutes of the May 21, 1985, board meeting showed a zoning ordinance was adopted at the meeting.

The county clerk at that time, A.T. Stubbs, testified that the ordinance was originally attached to the minutes, but because the 89-page ordinance was so bulky, he could not keep it attached and eventually kept it in the back of the minutes book. At some point, the ordinance was lost.

Brian Allen, zoning administrator at the time, testified that he maintained original signed copies of the ordinance in the zoning office and used it daily in the performance of his duties and to make copies for the public. His successor, John Byce, also confirmed that the ordinance was kept in the filing cabinet until he was asked to remove it in 1999, when it was turned over to the county clerk to attach to the May 21, 1985, minutes.

A forensic document expert testified after examining the copy that the paper it was printed on was manufactured in 1984 or 1985; that all fonts used in printing the copy were in use in 1984 and 1985; and the majority of the pages were originals printed by an impact printer.

EGL made several objections to the county's attempts to establish a copy as the original, but in March 2009, Superior Court Judge Samuel Ozburn ruled in favor of the county.

EGL ultimately appealed to the Supreme Court of Georgia, arguing that the copy established by the Superior Court was not the exact ordinance adopted in 1985. Other arguments were that the trial court's final order retroactively established a substantial copy as a zoning law and amended the zoning ordinance without the required published notice and public hearings.

EGL also argued that the order caused an unconstitutional taking of its property rights without just compensation by establishing a zoning ordinance that did not exist in the county's public records when EGL's rights vested in 1997.

However, the Supreme Court found that the court's ruling did not constitute a final legislative action by a local government, so it was not a zoning decision falling under the Zoning Procedures Law, which would require the public notification and hearings. The court found that the trial court's decree established a copy of the ordinance that existed in 1985, before the vesting of EGL's property rights.

"As we go forward in the other litigation, we have the Georgia Supreme Court affirming that the 1985 zoning ordinance is what we always knew it to be," said James Griffin with the County Attorney's Office. "We filed a separate action because we wanted to make sure we can use the document as evidence in the other case. The Georgia Supreme Court has said yes, you can."

The other litigation has been on hold in Superior Court while the appeal was pending.

Griffin said the case has been unusually drawn out.

"It's like a 19-inning baseball game. They happen, but they're rare," Griffin said.

"The Board of Commissioners is quite committed to not having a private landfill in this area open to the metro area's trash," he added.