Southern States-Bartow County, Inc. v. Riverwood Farm Property Owner's Association, Inc.
331 Ga. App. 878
Ga. Ct. App.2015Background
- Southern States applied to EPD in 1989 to develop a solid-waste landfill on property in unincorporated Bartow County; the County denied a zoning-compliance certificate because existing local zoning then prohibited the use.
- The Georgia Supreme Court in 1991 invalidated Bartow County’s earlier zoning ordinance; the Bartow Superior Court in 1994 held Southern States had a vested right (acquired in 1989) to use the property as a landfill and ordered the County to issue a certificate of zoning compliance.
- Southern States received a county certificate but did not commence landfill operations; it largely delayed action and submitted no materials to EPD for years.
- In 2004 Southern States submitted an EPD form checked as a “new permit” for a construction-and-demolition landfill; Southern States’ engineer says the submission was intended to modify the pending 1989 file, not to restart it.
- Plaintiffs (Riverwood Farm POA) sued in 2013 seeking declaratory/injunctive relief, alleging the proposed landfill violated then-applicable zoning; EPD issued a permit in Nov. 2013, plaintiffs administratively appealed; the trial court granted plaintiffs partial summary judgment, finding the 1993 zoning ordinance applied and Southern States’ vested right lapsed for failure to commence use within one year.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Subject-matter jurisdiction / administrative exhaustion | Plaintiffs can seek equitable relief in superior court because zoning issue transcends EPD permit appeal | Southern States: plaintiffs must exhaust administrative remedy under OCGA § 12-2-2 before suing | Court: Superior court had jurisdiction; EPD appeal would not resolve zoning/rights dispute and administrative remedy was inadequate |
| 2. Applicability of 1993 zoning ordinance | 1993 ordinance §6.1.4 applies because the 1989 ordinance was void and the first valid ordinance is 1993 | Southern States: vested right from 1989/1994 order should not be governed by 1993 restriction | Court: 1993 ordinance is applicable to evaluate vested right |
| 3. Whether vested right lapsed for failure to "commence" within one year | Plaintiffs: §6.1.4 requires actual commencement of the nonconforming use within one year; mere paperwork is insufficient | Southern States: obtaining county certificate shortly after the 1994 order satisfied commencement | Court: "Commence" means beginning operation/use; Southern States did not commence landfill within one year so vested right lapsed |
| 4. Constitutionality of the 1993 ordinance as retroactive | Plaintiffs: ordinance validly limits nonconforming uses | Southern States: ordinance is an unconstitutional retroactive law impairing vested rights | Court: Trial court did not rule below; appellate court vacated judgment and remanded so the constitutional claim must be decided first |
| 5. Whether the 2004 EPD submission waived vested rights (new permit) | Plaintiffs: 2004 submission was a new permit application so prior vesting was waived | Southern States: 2004 filing was intended as a modification of the pending 1989 file; genuine fact issue exists | Court: Genuine issues of material fact exist about whether 2004 was a new application; trial court erred in resolving as a matter of law |
Key Cases Cited
- Tilley Props., Inc. v. Bartow County, 261 Ga. 153 (1991) (invalidating Bartow County zoning ordinance and recognizing effect on vested rights)
- Fulton County v. Action Outdoor Advertising, JV, LLC, 289 Ga. 347 (2011) (vesting of permit rights upon timely submission under applicable ordinances)
- Daniel Corp. v. Reed, 291 Ga. 596 (2012) (statutory/ordinance interpretation principles; plain meaning controls)
- Emmons v. City of Arcade, 270 Ga. 196 (1998) (equitable relief available when administrative remedy is inadequate because local action is flawed)
- Benefield v. Tominich, 308 Ga. App. 605 (2011) (summary-judgment review standard and construing evidence for nonmovant)