A company’s plan to construct a landfill in Bartow County has cleared another legal hurdle under a ruling today by the Supreme Court of Georgia.
In today’s unanimous opinion, the high court has reversed a Bartow County court decision that found that the right of Southern States-Bartow County, Inc. to build the landfill on its property had lapsed under a local zoning ordinance.
“Because the zoning provision is unconstitutional as applied to Southern States, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion,” Justice Carol Hunstein writes for the court.
The facts of the case date back 30 years. According to briefs filed in the case, Southern States owns a tract of property near the intersection of Euharlee Road and Hodges Mine Road in unincorporated Bartow County. In 1989, Southern States 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. Following the Supreme Court’s ruling, in 1993, the County adopted a new zoning ordinance. Section 6.1.4 of that new ordinance stated: “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.” Eventually, in 2013, the Environmental Protection Division issued a solid-waste handling permit to Southern States, allowing the development of the landfill to go forward.
In May 2013, the Riverwood Farm Property Owners Association, a group of private 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.” The property owners 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 was 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 was constitutional. Southern States then appealed to the Georgia Supreme Court, arguing the ordinance was unconstitutional as applied to them.
In today’s opinion, the high court agrees with Southern States and has reversed the trial court’s ruling. “Our Constitution prohibits a legislative exercise of the police power that results in the passage of retrospective laws which injuriously affect the ‘vested rights’ of citizens,” the opinion says. “This prohibition against retroactive impairment of vested rights extends to the enactment of zoning regulations, which is an exercise of police powers.”
In this case, section 6.1.4, enacted in 1993, affects “rights which accrued before it became operative,” and it “impairs vested rights acquired under existing laws or creates a new obligation,” the opinion says. “Here, the one-year requirement imposed by Section 6.1.4 is not a minimal condition on Southern States’ vested rights. Indeed, Section 6.1.4 acts to eliminate a previously acquired vested right if the non-conforming use is not commenced within one year – i.e., if the land is not actually used for the non-conforming purpose within that time frame.” That time limit under the ordinance applies regardless of the feasibility of using the land within that time frame. The evidence in this case “plainly established that commencing use of the Bartow County property as a landfill within the full year was simply unfeasible. Consequently, as applied, Section 6.1.4 is retrospective and injuriously impairs Southern States’ vested right to develop its land free from county use restriction.” As a result, “we are required to declare it unconstitutional as applied to Southern States, and the trial court erred in concluding otherwise,” the opinion says.