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Southern States-Bartow County, Inc. v. Riverwood Farm Prop. Owners Ass'n, Inc.

Court of Appeals of Georgia

March 25, 2015


Reconsideration denied April 9, 2015.

Zoning. Bartow Superior Court. Before Judge Howell.

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.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.


Page 824

Dillard, Judge.

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 [331 Ga.App. 879] 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 Zoning Procedures Law.[3] And as a result, the Supreme

Page 825

Court held that there was " no valid restriction on the property, and the [property owner] has the right under the law to use the property as it so desires." [4] Then, on September 22, 1994, the Superior Court of Bartow County--in light of the Supreme Court's decision--issued an order, in which it ruled that because no valid zoning ordinance controlled in 1989 when Southern States submitted its landfill-permit application, Southern States had " a vested right to obtain a certificate of the right to use their real property without county land use restrictions ... despite the enactment of a subsequent zoning ordinance." Accordingly, the superior court ordered the County to issue the necessary certificate, and it enjoined the County from prohibiting Southern States's operation of a landfill on the subject property.

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 [331 Ga.App. 880] 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 ...

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