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Georgia Supreme Court reverses landfill ruling

COVINGTON -- The Georgia Supreme Court has reversed a 2010 decision by a Newton County Superior Court judge in the nearly 15-year legal battle between Newton County and East Georgia Land and Development Company LLC.

East Georgia Land has been fighting since 1997 to develop a private landfill that would serve the metro area on 427 acres just south of the county's current landfill on Lower River Road.

In 1997, the county's zoning administrator denied a request by East Georgia Land for written verification that the landfill proposal complied with local zoning and land use ordinances. Written verification is required by the Georgia Environmental Protection Division to obtain a landfill permit. The zoning administrator denied the request on the grounds that a landfill was not a permitted use of property under the 1985 zoning ordinance, which was in force at that time.

East Georgia Land tried to get an order from Superior Court to compel the county to issue the letter. During court proceedings, it was determined that the zoning ordinance was not attached to the minutes of the Board of Commissioners meeting at the time it was passed and the original ordinance was lost.

The county then took steps to establish a copy of the ordinance as the original, as allowed by Georgia law. East Georgia Land unsuccessfully challenged those efforts, ultimately losing an appeal to the Supreme Court of Georgia.

East Georgia Land then argued that even if the copy were established as an original, the ordinance was unenforceable because zoning maps were not properly adopted by the county, making the ordinance void.

In December 2010, Superior Court Judge Samuel D. Ozburn granted a summary judgment to the county. Ozburn's order stated the ordinance incorporates the official zoning maps that were referenced to determine the zoning district of the property and that the zoning maps were continuously maintained by the county and made accessible to the public.

"An examination of the established ordinance shows that a landfill is not a permitted use in any zoning district," the order states. "As a result, the zoning administrator of Newton County had no authority to issue the compliance letter to the plaintiff as a matter of law."

But on Monday, the Supreme Court of Georgia reversed that order and remanded the case. In the ruling, Justice George H. Carley states that "establishing a copy of a lost record serves merely as evidence of its existence and contents and does not purport to validate or enforce it."

Carley writes that " ... the establishment of a copy of the zoning ordinance does not miraculously cure issues related to its validity but merely establishes the copy as an evidentiary substitute for the original and thus subject to any validity or enforcement issues that could be raised against the original, including whether the original ordinance was attached to the May 2, 1985 minutes as required by law."

Carley writes that the volume of maps used as official zoning maps as required by the county's ordinance was only designated as official after East Georgia Land filed litigation. The trial court relied on oral testimony from a former planning and zoning department employee, and though the county claims that the original, designated volume of zoning maps has always existed and been kept in the administrator's office, "it has never produced these originally designated maps, which, if they do exist, would certainly settle this issue," Carley writes. "As it stands presently, however, the evidence relied upon by the trial court to identify the county's official zoning maps was inadmissible."

Justices Robert Benham and P. Harris Hines dissented. Benham writes that the trial court's decision was in line with the purpose of the Georgia statute that aims to make sure evidence of an original record is on file with the county in the event of loss or destruction.

"(East Georgia Land) 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," he stated.

County Attorney Tommy Craig and East Georgia Land Attorney Jimmy Paul could not be reached for comment.