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Posted: September 20, 2009 12:30 a.m.

Court upholds 2007 BOC decision to deny Oxford asphalt plant

In Feb. 2007, the Newton County Board of Commissioners voted to deny a conditional use permit for a second asphalt plant just outside Oxford, and on Aug. 31, more than two years later, a lawsuit challenging that decision has been dismissed.

County Attorney Tommy Craig announced to Alcovy Superior Court Judge Horace Johnson’s decision on Tuesday, and said he pleased with the positive outcome in the county’s favor. Oxford Mayor Jerry Roseberry, a prominent opponent to the CUP, said he was also happy to hear the case had been dismissed.

"I’m grateful to the some 1,500 citizens who volunteered and petitioned the commissioners (in 2007) to deny the CUP for the new asphalt plant, and we’re grateful to Commissioner (J.C.) Henderson for his support," Roseberry said. "The importance of not having the asphalt plant is environmental. If they had added a second plant there would have been more dust from rock quarry, more traffic from the trucks, and the children who live in the (nearby) Victoria Station would have been exposed to additional air quality problems … The prevailing winds come from the rock quarry over Oxford, so the whole city would have been affected.

"We’re very happy with the outcome, it’s very important to the future of our city," he added.

Serene Jweied, a communications director for LaFarge Aggregates Southeast, the France-based building material company that applied for the asphalt plant CUP, said in an e-mail to The News that the company was disappointed with the latest decision.

The conflict dates back to Oct. 2006, when LaFarge applied for a permit to build a plant on a 15.85 acre-tract on Marble Drive.

The site was zoned heavy industrial and a rock quarry and one asphalt plant were already located on Marble Drive, but Oxford residents and city officials were against the plant from the beginning, citing concerns about traffic and pollution. Former Oxford Mayor William Murdy and then Councilman Roseberry collected more than 1,000 signatures opposing the plant, in large part because of its proximity to the Victoria Station subdivision.

Several groups weighed in on the permit. The Northeast Georgia Regional Development Center expressed concerns about increased traffic and air and water pollution, which could be caused by potential storm water runoff. Despite those concerns, the Newton County Planning Commission heard enough in favor of the permit to make a 3-2 split recommendation in favor of the permit.

The BOC held a couple of public hearings, where Oxford residents, city officials and university employees spoke in opposition to the plant, while LaFarge representatives attempted to answer concerns and provide positive evidence of their own.

On Feb. 21, 2007 at the end of the second public hearing, the BOC voted 4-0 to deny the CUP, with Commissioner Earnest Simmons abstaining.

LaFarge filed a lawsuit against the county on March 28, 2007, challenging the county’s zoning ordinance, the BOC’s decision and even the process by which the BOC had come to make its decision.

LaFarge argued that the county’s zoning ordinance was unconstitutionally vague, that there was insufficient evidence to deny the permit, and that the BOC’s actions during and between the public hearings had been unlawful under the Georgia Open Records Act.

Johnson ruled against LaFarge on the first two challenges, stating that the zoning ordinance is constitutional, because the ordinance contains some specific criteria while giving the commissioners discretion. As far as the insufficient evidence case, Johnson ruled that although LaFarge answered many of the concerns raised, the law only requires there to be some evidence in support of the BOC’s decision, which there was.

The process question, or due process, was more complicated. LaFarge questioned several actions, including Craig meeting with commissioners after the first public hearing to ask how they would vote and why, which was actually required by the county ordinance. The court ruled this was not a violation.

The other major issues dealt with Commissioner J.C. Henderson meeting with residents outside of hearings to discuss the issue, which LaFarge said was a violation of the public hearing process, because commissioners were not supposed to bring outside information or bias to the hearings. However Johnson again ruled against LaFarge.

"This Court must be mindful of the fact that commissioners do not sit in a vacuum. A local legislator cannot be expected to simply forget all outside knowledge prior to a hearing or for that matter, to close their ears to the constituents’ concerns," the ruling states.

It went to explain that the court cannot attempt to judge legislator’s motives, but must rely on the facts presented.

"The underlying motive of an elected official is a rabbit hole that a court must refuse to go down where the record is most sufficient to support the announced decision of that body coupled with the absence of fraud being even alleged," the ruling continued.

In the end, the court granted summary judgment in favor of Newton County and ordered each party to pay its own legal expenses.

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