A company is appealing a Bartow County court ruling that it no longer has the right to construct a landfill on property it owns. The company argues that the County’s 1993 zoning ordinance eliminating its right is unconstitutional.

Southern States owns a tract of property near the intersection of Euharlee Road and Hodges Mine Road in unincorporated Bartow County. In 1989, it applied to the Georgia Environmental Protection Division for a permit to operate a sanitary waste landfill. Less than a year later, Southern States requested that Bartow County issue a certificate of land use approval, which the State required before issuing a permit. The County denied the request, stating that the zoning ordinance then in effect did not allow a landfill on the site. Southern States sued the County but before that case was resolved, the Georgia Supreme Court ruled in another Bartow County case that the zoning ordinance in effect had to be thrown out because it failed to follow minimum procedures set out in Georgia’s Zoning Procedures Act. In 1993, the County adopted a new zoning ordinance following the Supreme Court’s ruling. In section 6.1.4, the ordinance states: “Any intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance…shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance….” In 1994, the Bartow Superior Court ruled in Southern States’ favor, finding that, “Plaintiffs have a vested right to obtain a certificate of the right to use their real property without county land use restrictions….” Two months later, Southern States requested and obtained a zoning certification letter from the County’s zoning administrator to give to the Environmental Protection Division as part of its landfill permit application. However, according to the County and nearby property owners, it was another eight years before Southern States in 2002 gave the “go-ahead…to proceed with a full hydrogeological site assessment, wetland evaluations, and other work necessary to move the pending solid waste application forward through the Environmental Protection Division landfill permitting process.”

In May 2013, property owners near the proposed landfill site sued Southern States, asking the court to order the company not to go forward with the landfill until they could get a hearing on whether the site was “suitable for a landfill and would cause irreparable harm should such permit be granted.” They argued that under section 6.1.4 of the zoning ordinance, Southern States’ vested right as recognized by the court in its 1994 order expired as a result of the company’s failure to start using the property as a landfill within one year of the adoption of the ordinance. In response, Southern States filed a motion arguing that section 6.1.4 of the 1993 ordinance is unconstitutional. In December 2013, the Bartow Superior Court ruled that Southern States’ vested right to operate a landfill on the property had lapsed under section 6.1.4 of the ordinance as a result of the failure to begin using the property as a landfill. On appeal, the Georgia Court of Appeals upheld the ruling, but it remanded the case to the trial court to consider Southern States’ constitutional challenge to the ordinance. On remand, Southern States argued section 6.1.4 is unconstitutional because it violates the constitutional prohibition against the enactment of retroactive laws and it eliminates a vested right by legislative fiat even when the holder of that right does not consent. In February 2016, the trial court ruled that the 1993 ordinance is constitutional. Southern States now appeals to the Georgia Supreme Court, arguing the ordinance is unconstitutional as applied to them.

ARGUMENTS: Attorneys for Southern States argue the trial court erred by applying the 1993 ordinance, thereby eliminating their vested right to develop a landfill on their property. “Under Georgia law, a landowner acquires a vested right to use its property notwithstanding a change in the zoning ordinance if it has made a substantial change of position in relation to the land, made substantial expenditures, or has incurred substantial obligations,” they argue in briefs. In 1994, the trial court found that Southern States had “spent substantial sums of money” in its effort to get a landfill permit and that it had “acted in reliance upon assurances from the Bartow County zoning administrator that the landfill was permitted.” “The question of whether Southern States has a vested right to use its property for a landfill was resolved in favor of Southern States by the 1994 order, which Bartow County did not appeal,” the company’s attorneys argue. “Thus, the only question presented here is whether the county, by ordinance, may eliminate this vested right (without the payment of any compensation) based on one year of nonuse, even though the property owner has expressed its intent to develop its property consistent with its vested rights.” The ordinance “divested Southern States of its vested rights without its consent” and that is in violation of the Georgia Constitution. “The trial court erred because the Appellants’ [i.e. Southern States’] vested right was divested by legislative fiat solely as a result of the passage of one year, even though the evidence shows that the Appellants were taking action to use their property for a landfill and never abandoned these efforts. Proof that the Appellants did not abandon their effort to operate a landfill on the Southern States’ property is underscored by the fact that EPD issued a solid waste handling permit in 2013 during the pendency of this action.” The lengthy regulatory process through which any applicant for a landfill permit must go through makes it “impossible for a property owner to obtain all governmental approvals – especially where the approvals are appealed by neighboring property owners – and commence use of a tract for a landfill within one year.”

Attorneys for the County and property owners argue the trial court properly ruled that section 6.1.4 of the 1993 zoning ordinance is constitutional as applied to Southern States,. The power to regulate land use is granted by the Georgia Constitution directly to counties. “There is no question that under Georgia law, a ‘governing authority can require a nonconforming use to be terminated in a reasonable time,’” the attorneys argue in briefs. Under the rule Southern States wants the Supreme Court to adopt, “the holder of a vested right could sit on that right forever, until eventually, even decades later, the holder of the right decided to use its land without any regard to how the landscape, surrounding community, regulatory environment, and scientific knowledge had developed and changed in the meantime. Such a rule would be inconsistent with the well-established principle that local governments have the power to regulate land use.” The ordinance did not divest Southern States of a vested right without its consent “because Southern States consented to the loss of those rights through its conduct,” the County’s attorneys argue. “Southern States has failed to ever commence using its property as a landfill for more than two decades.” In its 1983 decision in Hayes v. Howell, the Georgia Supreme Court ruled that the holder of a vested right could lose that right by failing to meet reasonable conditions and obligations imposed by the government. In Hayes, retention of the rights was conditioned on using them or paying taxes on them within a specified period of time. Under the reasoning set forth in Hayes, section 6.1.4 of the ordinance “is not an unconstitutional retroactive law as applied to Southern States,” the attorneys argue. Other jurisdictions, such as California, have ruled that “a vested right to build or develop can lapse or expire based upon failure to proceed,” the County and property owners argue. “Section 6.1.4 itself did not divest Southern States of its vested right; it conditioned the retention of those rights on Southern States using them, which Southern States failed to do for years.”