Lawyers for the owners of a scrap metal yard on Roseberry Road presented the defendants' side of the issue with the county Friday.
The defense argued in Newton County Superior Court that the yard was grandfathered into the county's zoning ordinance and that the county was unfairly targeting Jay's Recycling by seeking an injunction against the business.
At the center of the defense of James Sharpshair (owner of Jay's Recycling) and Wayne Maloney (owner of the land on Roseberry Road, which Sharpshair leases for his business), is the fact that the yard constitutes a pre-existing, non-conforming use of the county's zoning ordinance and therefore should be allowed to continue its operation.
The defense rests on its claim that Maloney and his father used the property previously to buy and sell scrap metal throughout the 1960s, up until the present day.
According to Marian Eisenberg, director of Planning and Development for the county, who was subpoenaed by the defense to testify in court Friday before Judge Eugene Benton, for a business to constitute a non-conforming use it must be in place and operating lawfully prior to the existence of the zoning ordinance, which would otherwise prohibit it.
The business must also be in operation continuously. If it closes for more than a year after being grandfathered in then it cannot be re-open at a later date on the same piece of property. Additionally after being grandfathered in the business can not expand its operation to anything larger than it was before it was grandfathered in.
Attorneys for the county presented evidence that after Sharpshair took over the lease of Maloney's land he greatly expanded the operation of the scrap yard, bringing in car crushers and piling scrap metal forty feet high. Included in the county's evidence were aerial photographs taken of Maloney's land in 2003 and in 2007, after Sharpshair set up Jay's Recycling.
"It's fairly clear that the use has been expanded to cover more area," said Eisenberg of the photographs.
The defense brought up Homer Greer Holyfield, who operates a farm near Roseberry Road. Holyfield testified that he had done business regularly with Maloney and his father throughout the years and that there had always been scrap metal on the property since the 1960s.
However when Edward Tolley, attorney for Newton County, asked Holyfield whether or not the operation of Maloney and his father came close to the size of the operation of Jay's Recycling, Holyfield had to take a minute to think before answering.
"I can guarantee you there was a tremendous amount of steel there but it wasn't piled up 20 feet deep," Holyfield said.
During the course of the day's proceedings defense attorneys Mike Waters and Bob Stansfield brought up to the stand owners of other scrap metal yards in the county, which had successfully been grandfathered into the county's zoning ordinance to try to prove that the county was arbitrarily enforcing its ordinance against Jay's Recycling.
"Newton County does not uniformly enforce its ordinance," Stansfield said. "In order for the ordinance to be constitutional it has to be applied in a uniform non-discriminatory manner."
Tolley disagreed with Stansfield's interpretation of the law.
"Basically he's arguing that unless the county arrests every person who runs a stop sign, it can't arrest anybody," Tolley said.
On cross-examination of the scrap yard owners Tolley drew distinctions between the operation of Jay's Recycling and the operations of the other scrap yards namely that the other scrap yards had not expanded their operation since the new zoning ordinances were written whereas Jay's Recycling had.
In June the county presented its side of the case, arguing not only that Jay's Recycling did not meet the qualifications of a pre-existing non-conforming use, but that it constituted a public nuisance. As part of its case the county brought to the stand many of the residents of Roseberry Road who testified the loud noise, dust and odors created by the scrap metal yard were greatly affecting their quality of life.
A verdict on the case by Judge Benton is expected in the coming weeks.