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Posted: January 31, 2010 12:30 a.m.

County closer to stopping private landfill

The Supreme Court of Georgia ruled in Newton County’s favor Monday, ending a 12-year old lawsuit against Newton County that brings the county one step closer to preventing a private landfill from opening.

East Georgia Land and Development Company owns 417 acres of land off Fire Tower Road, just southwest of the county’s current nearly 90-acre landfill on Lower River Road.

In 1997 EGL requested a letter from the county stating EGL was permitted to develop a landfill on its property; this is the first step in applying for a landfill permit from the Georgia Environmental Protection Division.

The county refused to write a letter citing a 1985 zoning ordinance the county said prohibited the landfill from being built; the land was and is zoned Agricultural-Residential.

EGL then sued the county to force the county to write a letter approving the use of the property for a landfill. During the course of that lawsuit, which is still pending the county learned that the original zoning ordinance, which was approved during a May 21, 1985 Board of Commissioners meeting, was no longer attached to that meeting’s minutes. It was determined that the original copy of the 1985 ordinance was lost.

A signed copy of the original zoning ordinance was found in a cabinet in the zoning office. At the county attorney’s request, Probate County Judge Henry Baker filed a petition in superior court to establish this copy as the original ordinance under the Georgia Lost Records Act, since the original had been lost.

EGL felt this action was unconstitutional and illegal for several reasons, primarily because there was not sufficient evidence to prove this copy was the same as the original zoning ordinance.

After hearing testimony from former Zoning Administrators Brian Allen and John Byce, former County Clerk A.T. Stubbs and a forensic document examiner, Superior Court Judge Samuel D. Ozburn ruled in favor of the county.

EGL appealed this decision to the Georgia Supreme Court, which considered several issues.

EGL argued that because an ordinance is a form of legislation and not the same as other court records, like case filings and real estate records that are actually stored in the courthouse, the lost records act should not apply to ordinances. The Supreme Court disagreed and ruled the meaning of the act included any public record.

The court also backed up Ozburn’s decision that there was enough evidence to prove the copy of the ordinance was the same as the original.

EGL also argued that by making the copy of the ordinance the original, the court was creating legislation, which is not the court’s purpose. However, the Supreme Court said the Superior Court’s decision was not the enforcement of the ordinance, adoption of a new ordinance, nor the amendment of an existing ordinance. Rather, it was simply the interpretation of a previous law, the Lost Records Act, and "… re-establish[es] the ordinance as always having been in effect."

Finally, EGL argued that the ruling amounted to an unconstitutional taking of property rights without compensation, because the ordinance didn’t exist when EGL’s property rights vested in 1997 and now the land could not be used for the intended purpose of a landfill. The Supreme Court said because it was reestablishing an ordinance that existed in 1985, no rights were violated.

The court’s decision in favor of Newton County was unanimous.

Now that this case has been decided, EGL and the county can move forward with the original case debating whether the landfill is in fact against the county’s 1985 zoning ordinance.

County Attorney James Griffin said the case been going on for 12 years because the BOC is committed to not allowing a private landfill to come to Newton County.

"The Board of Commissioners has fought hard and long to prevent a high-volume commercial landfill from being built in Newton County against the will of the citizens," Griffin said in an e-mail.

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