A company wanting to build a private landfill in Newton County could yet get its way after the Georgia Supreme Court this week overturned a ruling that had effectively ended any chance of a landfill.

East Georgia Land and Development Company wants to build a private landfill on 427 acres of land it owns off Fire Tower Road, just southwest of the county's current nearly 90-acre landfill on Lower River Road, but was told in 1997that a landfill was not allowed under the county's zoning ordinance.

The Supreme Court essentially ruled that the county has yet to prove that it followed all the required steps when it approved a zoning ordinance in 1985. East Georgia Land's (EGL) argument is that the zoning ordinance is invalid because it wasn't properly, and therefore, officially approved.

EGL and Newton County have been involved in several related law suits since 1997, and Monday's ruling by the Supreme Court ensures the legal battle will continue as it sent the case back down to the Superior Court.

"From our clients perspective, we've been trying to get a decision on the merits for over 14 years, we are grateful the Supreme Court has given us a road map and we intend to follow that roadmap to the end," said Atlanta attorney Jimmy Paul Thursday.

"The client does remain committed to having a landfill in Newton County assuming it can get through the process. The question about private, the client has always been willing to consider going into a public-private partnership with Newton County, so it's not as if the client is saying they must be private."

Newton County Attorney Tommy Craig could not be reached for comment.

History of the case
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 it to write a letter approving the use of the property for a landfill. During the course of that lawsuit, 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 Court 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. (The county had to use this procedure, because it could not rely on oral testimony from witnesses to prove that the zoning ordinance being used was the same as the one originally approved in 1985.)

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 ruled in the county's favor in January 2010.
In that case, one of EGL's arguments was the fact 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.

Is the 1985 zoning ordinance valid?
Following the Supreme Court's ruling that the copy of the 1985 zoning ordinance was a valid copy, EGL and Newton County then moved forward with their lawsuit regarding whether the zoning ordinance was officially in place and valid.

In its original case, EGL argued the 1985 zoning ordinance was invalid for two reasons:
n the ordinance was not attached to the minutes, as is required by law in the zoning maps, which are designed to be used with the ordinance, had also not been properly adopted by the county

In December 2010, Ozburn ruled in favor of the county on both points. Ozburn said that the Supreme Court's earlier decision that the replacement copy of the ordinance was valid rendered moot EGL's argument that the zoning ordinance was not attached.

EGL appealed that ruling as well and this time the Georgia Supreme Court sided with EGL.

In order for a zoning ordinance to be in affect, it must both be approved by the board of commissioners and properly attached to the minutes from that meeting. The Supreme Court essentially ruled that the county has never proved whether the ordinance was in fact attached.

In his original order from March 2009, which dealt only with whether the replacement copy was valid, Ozburn wrote "that a zoning ordinance was adopted . . . on May 21, 1985, and apparently had been attached to the official minutes of the meeting[,] . . . was subsequently lost, and that a copy of the ordinance was found in the zoning office in 1999. . ."

The Supreme Court supported the decision by Ozburn, but again clarified this time around that its decision did not specify whether the minutes were attached or not. Justice George Carley wrote that the words "apparently had been attached" did not actually confirm that whether the minutes had been attached.

As a result, Carley wrote that the local Superior Court erred in deciding that the Supreme Court's decision rendered moot the question of whether the county used a valid process to adopt its zoning ordinance.

The Supreme Court also ruled in EGL's favor, saying that the zoning maps passed by the county were not clearly marked.

In the 1985 zoning ordinance, there is reference made to maps "bounded in one volume entitled "Official Zoning District Maps for Newton County." However, evidence shows that the county did not actually have its current set of maps labeled as "Official Zoning District Maps for Newton County," which was supposed to be required by the ordinance itself.
The Superior Court relied on oral testimony by former Zoning Administrator John Byce, who said the original maps were correctly labeled, despite the fact the current maps were not. The Supreme Court said oral evidence cannot be used in that way and that such evidence was inadmissible.

As a result, the case has been sent back to the Superior Court, where it must be heard again.

The Supreme Court's ruling was a split decision, as two justices dissented. In his dissenting opinion, Justice Robert Benham wrote that Ozburn had ruled correctly. Benham wrote that evidence heard in Superior Court said the zoning ordinance had in fact been attached to the meeting minutes, that Ozburn had ruled that this was the case and that the Supreme Court had confirmed Ozburn's ruling.

"Appellant (EGL) cannot continue to use the ordinance's inadvertent detachment from the minutes as a means to draw out this fourteen-year-old litigation and avoid, by a technical default, the possibility of an unfavorable outcome," Benham wrote.