SOUTHERN STATES-BARTOW COUNTY, INC. et al. v. RIVERWOOD FARM PROPERTY OWNERS ASSOCIATION, INC. et al.
A14A1562
Court of Appeals of Georgia
MARCH 25, 2015
RECONSIDERATION DENIED APRIL 9, 2015
769 SE2d 823
DILLARD, Judge.
S. Cindy Wang, for appellant.
James L. Wright III, District Attorney, Jordan K. Van Matre, Sandra G. Rivers, Assistant District Attorneys, for appellee.
In this civil action, Riverwood Farm Property Owners Association, Inc., a group of private property owners in unincorporated Bartow County (“plaintiffs“), sued Southern States-Bartow County, Inc., several companies and individuals with ownership interest in Southern States (collectively “Southern States“), and Bartow County (“County“), alleging that a landfill Southern States proposed to develop on property it owned within the County violated zoning ordinances and should be enjoined. Following a grant of partial summary judgment in favor of the plaintiffs, Southern States appeals, arguing that the trial court erred in (1) finding that a 1993 county zoning ordinance applied to the property; (2) finding that Southern States failed to retain its right to develop a landfill; (3) failing to find that the 1993 zoning ordinance violated the Georgia Constitution; (4) finding, alternatively, that Southern States waived any rights it had when it sought a new landfill permit in 2004; and (5) finding that it had subject-matter jurisdiction, despite the fact that the plaintiffs were also contesting the landfill permit in an administrative proceeding. For the reasons set forth infra, we vacate the judgment and remand for further proceedings consistent with this opinion.
Viewed in the light most favorable to Southern States (i.e., the nonmoving party),1 the record shows that in 1989, Southern States filed an application with the Georgia Environmental Protection Division (“EPD“) to develop and operate a solid-waste landfill on property that it owned on Hodges Mine Road in Bartow County. In connection with that application, Southern States was required to obtain a certificate of zoning compliance from the County, demonstrating that the landfill complied with local zoning and land-use ordinances.2 But at that time, the County‘s applicable zoning ordinances did not allow for a landfill on the subject property. And consequently, the County refused Southern States‘s request for a certificate of zoning compliance. Shortly thereafter, litigation ensued.
In 1991, in a separate but somewhat related action, the Supreme Court of Georgia declared the Bartow County zoning ordinance to be invalid on the ground that the County failed to comply with the
Shortly thereafter, Southern States requested and received a certificate of zoning compliance from the County. Nevertheless, while it continued internal discussions and evaluations regarding development of the landfill for nearly ten years, Southern States did little, if anything, toward moving the project forward and submitted no additional information, including the certificate of zoning compliance, to the EPD.
Eventually, in 2004, Southern States submitted what was characterized as a new permit application for a “Construction and Demolition” landfill. And although under the zoning ordinances in place at that time a landfill on the property was not a permitted use, the County—assuming that it was still constrained by the 1994 Superior Court order—issued a certificate of zoning compliance in support of Southern States‘s application. Still, the process dragged on for nearly another decade. And in January 2012, Southern States submitted to the EPD yet another certificate of zoning compliance issued by the County.
On May 23, 2013, while Southern States‘s application was still pending with the EPD, plaintiffs filed a complaint for declaratory judgment and injunctive relief against Southern States and the County, alleging that the proposed landfill violated County zoning ordinances. Later, plaintiffs amended their complaint to include claims for anticipatory nuisance and violations of Georgia‘s Racketeer Influenced and Corrupt Organizations (“RICO“) Act.5 Southern States and the County filed answers, and in May 2013, Southern States filed a motion to dismiss, which the trial court denied.
On November 12, 2013, plaintiffs filed a motion for partial summary judgment, arguing that, based on the 1993 zoning ordinance in force at the time the superior court issued the 1994 order (ruling that Southern States had a vested right to operate a landfill), Southern States‘s vested right lapsed because it failed to commence using the property as a landfill within one year. The plaintiffs also contended that, notwithstanding the 1994 order, because Southern States sought a new EPD permit for the landfill in 2004, its actions were governed by the zoning ordinances in place at that time, which prohibited such use.
Shortly thereafter, on November 14, 2013, the EPD finally issued a solid-waste handling permit to Southern States, allowing it to develop and operate a landfill on its Hodges Mine Road property. Consequently, Southern States reasserted its motion to dismiss plaintiffs’ nuisance claim, arguing that plaintiffs were required to challenge the grant of the EPD permit via an administrative proceeding before seeking relief in the superior court.6 In that same motion, Southern States also sought dismissal of the plaintiffs’ RICO and punitive-damages claims.
On December 30, 2013, following a hearing on all the pending motions, the trial court granted the plaintiffs’ motion for partial summary
Southern States then filed an appeal in the Supreme Court of Georgia, challenging the trial court‘s grant of partial summary judgment in favor of the plaintiffs and the court‘s denial of its motion to dismiss plaintiffs’ anticipatory-nuisance claim. However, the Supreme Court held that the issues on appeal failed to invoke its jurisdiction over equity cases or constitutional questions, and thus, transferred the matter to this Court.7 This appeal follows.
At the outset, we note that it is well established that summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”8 If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of
1. Southern States contends that the trial court erred in denying its motion to dismiss plaintiffs’ anticipatory-nuisance claim. Specifically, it argues that the court erred in finding that it had subject-matter jurisdiction over the case despite the fact that the plaintiffs were also contesting the landfill permit in an EPD administrative proceeding. Because subject-matter jurisdiction is a threshold issue,12 we will address this claim first and, in doing so, hold that the trial court did not err.
As noted supra, after plaintiffs filed this lawsuit—in fact only shortly before the trial court granted the plaintiffs partial summary judgment—the EPD granted Southern States‘s permit application. Immediately thereafter, plaintiffs challenged that administrative grant under
Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge of the Office of State Administrative Hearings assigned under Code Section 50-13-40 and acting in place of the Board of Natural Resources. . . .
Southern States is correct that decisions of the Supreme Court of Georgia have held that “where a statute provides a party with a means of review by an administrative agency, such procedure is generally an adequate remedy at law so as to preclude the grant of equitable relief.”13 But here, a proceeding under
2. Southern States also contends that the trial court erred in finding that the 1993 Bartow County Zoning Ordinance Section 6.1.4 was applicable to its vested right to operate a landfill on its property as recognized by the 1994 Superior Court order. Again, we disagree.
Section 6.1.4 of the Bartow County Zoning Ordinance, which became effective in September of 1993, provided:
Any intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance or the adoption of an amendment thereto shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance or the adoption of an amendment thereto regardless of the intent or expectation to commence or abandon such non-conforming use.17
Here, the Bartow County Superior Court recognized Southern States‘s vested right to develop a landfill in its 1994 order, but the right was actually acquired in 1989 when Southern States submitted its application for a landfill permit to the EPD.18 And given that our Supreme Court held in 1991 that the County‘s zoning ordinance in place in 1989 was void,19 the first applicable zoning ordinance was the ordinance effective in 1993. Accordingly, the trial court did not err in finding that § 6.1.4 of the County‘s 1993 zoning ordinance was applicable in evaluating Southern States‘s vested right.
3. Southern States next maintains that the trial court erred in finding that it did not retain its vested right to operate a landfill because it failed to comply with § 6.1.4 of the County‘s 1993 zoning ordinance. Once again, we disagree.
As an initial matter, we note that the principles guiding our consideration of the meaning of statutes are settled ones, and we “apply those same principles when we
As noted supra, § 6.1.4 of the County‘s zoning ordinance provides, in part, that “[a]ny intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance or the adoption of an amendment thereto shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance . . . .”24 And here, the non-conforming use for which Southern States obtained a vested right, as noted in the 1994 Superior Court order, was to operate a landfill on its property. The question, then, becomes whether Southern States “commenced” the “non-conforming use” of the property within one year so that its vested right did not lapse.
Southern States argues that it complied with § 6.1.4 of the 1993 zoning ordinance by obtaining a zoning-compliance letter from the County within a few months after the 1994 Superior Court order. But we disagree that the zoning ordinance can be read so expansively, as the plain meaning of “commencing” the non-conforming “use” indicates the start of operating an actual landfill on the property and, therefore, at the very least, involves something more than submitting paperwork.25 This, Southern States did not do. Indeed, it is undisputed that Southern States did not actually begin operating a landfill on the property within one year of the 1994 order or even within ten years. As such, the trial court did not err in finding that Southern States failed to comply with the 1993 zoning ordinance and that its vested right to operate a landfill, therefore, lapsed.26
4. Southern States further contends that, assuming it is applicable, the trial court erred in failing to find that the 1993 zoning ordinance violates the Georgia Constitution. Specifically, Southern States argues that Article I, Section I, Paragraph X of the Georgia Constitution,27 “forbids passage of retroactive laws which injuriously affect the vested rights of citizens.”28
The record, in fact, shows that Southern States raised a constitutional challenge to the 1993 Bartow County zoning ordinance before the trial court in its response to the
5. Finally, Southern States contends that the trial court erred in finding, alternatively, that Southern States waived any vested rights it may have had when it sought a new landfill permit from the EPD in 2004. And because affirming the trial court on this claim of error would potentially obviate any further proceedings in this matter, we must address it now. In doing so, we hold that genuine issues of material fact exist as to whether Southern States‘s application submitted to the EPD in 2004 constituted a new permit such that any vested rights resulting from the 1989 application were waived.
As noted in the affidavit of Southern States‘s consulting environmental engineer, by 2004, the EPD required permit applicants to submit additional information that was not previously required. But as the engineer further noted, on the relevant EPD form, there was no place to indicate that the applicant was modifying a pending application. Thus, Southern States checked the box on the form indicating “new permit.” However, as the engineer explained, Southern States‘s goal in this regard was merely to reduce the scope of its pending application. It was not seeking to restart the application process, and, in fact, according to the engineer, the 2004 application was made part of the EPD‘s original 1989 application file.
In response, the plaintiffs argue that “self-serving and conclusory affidavits are insufficient to create an issue for trial.”32 But in light of its level of detail, Southern States‘s engineer‘s affidavit can hardly be characterized as merely conclusory. And despite the apparent self-serving nature of this affidavit, “whether the testimony is credible is not an issue that the trial court can determine on summary judgment.”33 Indeed, given that all doubts are “to be resolved against [the plaintiffs]”34 as movants, the affidavit presents a genuine issue of material fact as to whether Southern States‘s 2004 application constituted a new permit such that any vested rights resulting from the 1989 application were waived. Accordingly, the trial court erred in ruling otherwise.35
For all of the foregoing reasons, we vacate the trial court‘s judgment and remand the case for further proceedings consistent with this opinion. In light of our holdings in Divisions 4 and 5, supra, we recognize that such further proceedings entail two possibilities. A ruling in favor of the plaintiffs on the constitutionality of the 1993 zoning ordinance resolves the case at the trial-court level and renders the characterization of the 2004 EPD permit application moot, while a ruling in
Judgment vacated and case remanded. Doyle, P. J., and Miller, J., concur.
DECIDED MARCH 25, 2015 — RECONSIDERATION DENIED APRIL 9, 2015.
Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Jones Cork & Miller, Robert C. Norman, Jr., for appellants.
Genevieve L. Frazier, Kazmarek Mowrey Cloud Laseter, Edward A. Kazmarek, Kimberley Hale, for appellees.