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Rozar v. Mullis

June 17, 1996

CATHERINE ROZAR, WAYNE BEARD, ANITA ASHLEY, VANCE HEARD, ROYEL LEE HINES, ESSIE B. BRANTLEY, JOYCE CUMMINGS, MACEO ROZAR, HOMER L. BERRY, SR., TOMMY LEE BEARD, INDIVIDUALLY AND AS REPRESENTATIVE OF SAVE OUR NEIGHBORHOOD COMMUNITY NEIGHBORHOOD ASSOCIATION, PLAINTIFFS-APPELLANTS,
v.
D.M. MULLIS, INDIVIDUALLY AND AS MEMBER OF THE LAURENS COUNTY BOARD OF COMMISSIONERS, ROSCOE BROWER, INDIVIDUALLY AND MEMBER OF THE LAURENS COUNTY BOARD OF COMMISSIONERS, EMORY LAKE, INDIVIDUALLY AND AS MEMBER OF THE LAURENS COUNTY BOARD OF COMMISSIONERS, MICHAEL WOLFE, INDIVIDUALLY AND AS MEMBER OF THE LAURENS COUNTY BOARD OF COMMISSIONERS, HAROLD REHEIS, INDIVIDUALLY AND AS DIRECTOR OF THE ENVIRONMENTAL PROTECTION DIVISION OF THE GEORGIA DEPARTMENT OF NATURAL RESOURCES, ENVIRONMENTAL PROTECTION DIVISION OF THE GEORGIA DEPARTMENT OF NATURAL RESOURCES, LAURENS COUNTY, GEORGIA, DEFENDANTS-APPELLEES.



Appeal from the United States District Court Southern District of Georgia. (No. CV-394-51). Dudley H. Bowen, Jr., Judge.

Before Tjoflat, Chief Judge, and Roney and Campbell,*fn* Senior Circuit Judges.

Author: Campbell

LEVIN H. CAMPBELL, Senior Circuit Judge:

Plaintiffs, as individuals and representatives of Save Our Neighborhood Community Neighborhood Association, sued Laurens County in Georgia, members of its Board of Commissioners ("County Board"), the Georgia Environmental Protection Division ("EPD"), and its director,*fn1 alleging racial discrimination in the siting and permitting of a solid waste landfill in their neighborhood. Plaintiffs appeal from orders, entered by the United States District Court for the Southern District of Georgia, denying an injunction and granting summary judgment to the defendants on the ground that the plaintiffs' federal claims were time-barred. We affirm, although on grounds different in some respects from those stated by the district court.

I.

This case arises from Laurens County's efforts to construct a solid waste landfill to replace its existing one, which had almost reached capacity and was becoming contaminated. In 1989 the County Board hired an engineering firm, Tribble & Richardson, Inc., and a local property expert, Curtis Beall, to investigate potential sites suitable for a new landfill. Beall prepared a list of more than twenty possible sites, some of which were readily rejected because of insufficient useable acreage or the owner's unwillingness to sell. The record contains evidence that additional sites were added to the list as others were eliminated.

In January 1991 the County Board met to discuss a site at Scotland Road, which the engineers had recommended. Citing concerns such as the sufficiency of useable land there, the Board voted to table any action until alternatives were studied. Plaintiffs say that the site was not pursued because white residents protested. The record suggests, however, that most of the area residents were African-American; both an African-American and a white church were nearby.

The list of potential landfill sites was expanded to include Old Macon Road, a mixed racial neighborhood located approximately three miles from the existing solid waste landfill. The record indicates that this site was brought to the County Board's attention when the property owner offered to sell a sizable tract (more than 400 acres). Preliminary testing was done on the Old Macon Road property in February 1991, at which time a renewable option to purchase the property was signed. In November 1991, at a meeting attended by at least one plaintiff, the County Board voted to hold a public hearing the next month to decide whether to construct the landfill there and to apply to the state for a permit. Notice of the date, time, and purposes of the meeting was published in the local newspaper in the weeks before the meeting and was posted at the proposed site and at the local courthouse, where the meeting was to be held.

At least one named plaintiff attended the public meeting on December 3, 1991 and protested the proposed siting of the landfill near plaintiffs' homes. The County Board, which was comprised of one African-American and four white members, voted for the Old Macon Road site by three to two. The three who supported the site were white.

The County Board promptly applied to the state for a permit to construct the landfill at Old Macon Road, as required by the Georgia Comprehensive Solid Waste Management Act, O.C.G.A. § 12-8-20 et seq. ("CSWMA").*fn2 In late December 1991, the Georgia EPD notified the Board that, after a preliminary review of the application, the Old Macon Road site seemed "quite complex from a hydrogeological point of view." The letter stated that an expanded subsurface investigation was needed, and that it "may demonstrate that the site is not suitable."

Land studies continued, and the property ultimately was determined to be acceptable for solid waste disposal. The EPD so notified the County Board in a "site suitability" letter on August 31, 1992. The letter emphasized that before a permit could be granted, all state requirements had to be met, including the Board's submission and the State's approval of a solid waste landfill design and operational plan. The County Board, having received the site suitability letter, voted on September 15, 1992 to purchase the Old Macon Road property (for which an option to purchase had been renewed since the initial agreement in February 1991). The purchase took place on September 28, 1992.

The following spring, the County Board initiated a "facility issues negotiation process" as required by state law. See O.C.G.A. § 12-8-32(f). Some plaintiffs participated, voicing concerns with issues such as the hours and methods of the landfill's operation, fencing around the property, and traffic flow. Race-related concerns were not raised, apparently because some plaintiffs had been advised by the facilitator that that was not an appropriate forum in which to do so. Following completion of the negotiation process, the Board proceeded with its permit application, and the EPD issued a permit on September 3, 1993.

Plaintiffs appealed from the EPD's issuance of the permit to the Georgia Board of Natural Resources. County Board representatives intervened as respondents. Plaintiffs challenged on numerous grounds whether respondents had complied with statutory and regulatory requirements (e.g., public notice provisions, protections against contamination of the wells). Allegations of race discrimination were not raised. An administrative law judge held an evidentiary hearing and issued an order in June 1994 affirming the issuance of the permit upon compliance with one condition (involving acceptance of out-of-county waste). The Laurens County Superior Court affirmed the ALJ's order on November 4, 1994.

Meanwhile, on August 15, 1994, plaintiffs filed this civil complaint in the federal district court. Seeking damages and a preliminary and permanent injunction, they asserted various claims, including that the county and state defendants had committed acts of racial discrimination under color of law and had conspired to deprive them of federally secured rights. After a hearing, the district court denied a preliminary injunction in December 1994. The court subsequently allowed the county and state defendants' ...


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