What used to be a quiet and pleasant residential road off of Ga. Highway 81 south of Porterdale is now permeated with the fumes of oil and diesel fuel and the sounds of trucks rumbling up and down Roseberry Road to pick up and drop off loads of scrap metal from Jay's Recycling, a scrap metal yard which is surrounded by residences.

Scrap metal and other assorted items are thrown together in heaps facing the street. The assorted detritus from the yard is partially hidden from view by several trailers set up around the lot, but through several gaping holes, the wide expanse of the operation can still be seen from across the street.

Residents of Roseberry Road are outraged with the owner of Jay's Recycling, James Sharpshair and with the owner of the six-acre plot that Sharpshair leases for the junkyard - Wayne Maloney.

Glenda Burleson has lived on Roseberry Road for over 40 years and described it as a nice place to live until Jay's Recycling opened up next door to her at 83 Roseberry Road in May, 2006.

"It is a real nuisance with noise pollution, dust, fumes and the bad smell. We have traffic that we do not normally have," said Burleson. "It's very distressful to me to have to contend with this every day and look at this mess."

However residents aren't taking what they see as a violation of the county's zoning ordinance lying down.

Paul Autry, who has lived at 155 Roseberry Road for 33 years with his wife Deborah approximately 500 yards away from the scrap yard, said he feels like his house is now in the middle of a landfill.

Autry first filed noise and smell complaints against Jay's Recycling soon after the business opened up. County code enforcement officers came to the property and issued citations against Jay's Recycling. The case went to Magistrate Court and, according to Autry, in June Sharpshair was directed to shut down his business within 30 days by Judge Henry Baker.

However Sharpshair filed an appeal and the case was brought before the Newton County Superior Court.

 "I went to the county commissioners who got the county lawyers involved and it just went from there and ended up as a lawsuit," Autry said.

The county has made two allegations in the lawsuit - that Jay's Recycling is not conforming with county zoning ordinance and that Jay's Recycling constitutes a public nuisance - and is suing both James Sharpshair and Wayne Maloney who has allowed Jay's Recycling to operate under his business license said Autry.

While lawyers for Newton County have already presented their side of the case, the attorney's for the defense will not come before Judge Eugene Benton to present their side of the matter until Aug. 3.

Michael Waters, attorney with the law firm Ballard, Stephenson and Waters, is representing Maloney in the suit.

Both Waters and the legal representation for Sharpshair contend that Jay's Recycling is a lawful operating entity because the property is subject to a pre-existing non-conforming use.

In other words the defense is claiming that since Maloney and his father operated a yard previous to the existence of county zoning ordinance which prohibits such things as scrap metal yards in residential areas, the property has been 'grandfathered in.'

However residents of Roseberry Road claim that while there were at various times scrap metal and other assorted junk on the property, it never came close to the large scale operation in place today.

"He had some junk, but it ain't never been like this," said Roseberry Road resident Ruby Sullivan, who with her husband Robert has lived on the street for over 50 years and now lives directly across from the scrap metal yard.

Waters in turn claims that he has aerial photos taken of the property in the 1960s, 1970s and 1990s which show that the land has been used previously as a scrap metal yard.

"The equipment that is used now for operating Jay's Scrap Metal is a little different but that is not something that violates zoning," Waters said.

James Griffin, an attorney with Thomas Craig's office who is prosecuting the case on behalf of the county, contends that Jay's Recycling does not constitute a pre-existing non-conforming use since, he says, that Wayne Maloney's mother used to live on the property.

The non-conforming pre-existing use only applies to properties where any structure of building on the property is incidental and accessory to the primary use of the property says Griffin. An occupied residence does not constitute an accessory use but rather the primary use of the property.

"The primary use of that lot was the home of the defendant's mother at the time of the 1999 zoning ordinance and the 2003 zoning ordinance," Griffin said. "So you can't argue it's an open non-conforming use of the lot unless every structure on the lot is incidental and accessory."

As for the allegation that Jay's Recycling constitutes a public nuisance, Waters contends that the county will not be able to prove it is a public nuisance unless it can show that the scrap metal yard affects the public at large.

"If there is a nuisance, it only affects certain landowners," Waters said. "This is not something that someone a mile down that road or six blocks down the road is going to be affected by."

Newton County disagrees, however. According to Griffin even if a business is operating lawfully under the county ordinance it can become a nuisance due to changing circumstances.

While most residents of Roseberry Road who have testified in Newton County Superior Court on the matter are in agreement that the small business operation run by Wayne Maloney and his father years ago was not large enough to constitute a public nuisance, they all agree that the much larger scale operation of Jay's Recycling does.