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Macon-Bibb County Planning and Zoning Commission v. Epic Midstream, LLC

Court of Appeals of Georgia, Second Division

March 15, 2019


          MILLER, P. J., BROWN and GOSS, JJ.

          GOSS, JUDGE.

         In this discretionary appeal, the Macon-Bibb County Planning and Zoning Commission ("the Commission") appeals from the superior court order reversing its denial of a conditional use permit for a railroad spur transfer station to unload ethanol into a pipeline. The Commission contends that the superior court erred in (1) failing to consider its answer to the certiorari petition; (2) failing to adhere to the deferential standard of review in a certiorari proceeding; and (3) issuing a final decision rather than remanding the case to the Commission for a new hearing. For the reasons that follow, we reverse.

         "When reviewing a local governing body's zoning decision, the superior court applies the any evidence standard of review. In the appellate courts, the standard of review is whether there is any evidence supporting the decision of the local governing body, not whether there is any evidence supporting the decision of the superior court." (Citation and punctuation omitted.) Bulloch County Bd. of Commrs. v. Williams, 332 Ga.App. 815 (773 S.E.2d 37) (2015).

         So viewed, the record shows that Epic Midstream, LLC, a handler of petroleum fuels, acquired roughly 80 acres of property ("the property") at the intersection of Barnes Ferry Road with Sofkee Road and the Norfolk Southern rail line in Bibb County. Some of the property was zoned M-1 Light Industrial ("M-1"), [1] but a portion was zoned Agricultural. Epic sought to have the entire property zoned M-1 and filed a rezoning application on February 4, 2015. The application was deferred numerous times before Epic was instructed to also apply for a conditional use permit, which it did on June 4, 2015. Both applications were subsequently withdrawn, and Epic then submitted new applications for rezoning and a conditional use permit. The application sought conditional use approval pursuant to Section 16.03 of the Comprehensive Land Development Resolution for the City of Macon and Bibb County, Georgia ("CLDR") to build and operate a railroad spur transfer station for the offloading of ethanol from railroad tanker cars directly into an underground pipeline which would transport the ethanol to Epic's petroleum distribution facility nearby.[2] A final hearing was held on Epic's applications on November 9, 2015, during which Epic presented testimony from its project director, the design firm's project manager, and a land planner.

         During the hearing, the design manager testified that the rail cars carrying ethanol would be redirected from the Norfolk Southern rail line onto the rail spur, or "loop."[3] Sixteen train cars would be unloaded at a time, five times, for a total of 80 train cars at a time. The entire process would be completed within 24 hours, meaning it was likely that some of the process would take place during the night. Epic's project director testified that the unloading process would happen approximately once per month for a total of 13 unloadings per year. He further testified that the frequency could increase in the future based on contractual demands.

         The land planner hired by Epic testified that there would be three access points to the property - two from Barnes Ferry Road and one from Sofkee Road. He explained that directly west of the property lies the main rail line, running parallel to Sofkee Road, and that the area further west is zoned M-2 Industrial, in which area a truck loading facility with above-ground tanks is located.[4] At the time of the hearing, the area to the northwest of the property and west of the rail line was vacant and mostly zoned M-1. A residential neighborhood was located to the north of the property, on the other side of Barnes Ferry Road, nested in between the property and an Industrial Park. The land to the east of the property was primarily undeveloped with some residences scattered along Barnes Ferry Road. A large farm was located directly southeast of the property while the area directly to the south was largely undeveloped and zoned Agricultural or M-1. Various industrial developments were located in the area southwest of the property, which was zoned M-1. The land planner testified that the region in which the property is located is "largely industrial," that the property is within close proximity to five industrial parks, and that the property is best suited to an industrial purpose. No homes had been built in the neighborhood abutting the property since 1991. According to him, this showed that this was not a "thriving" residential area, and the trajectory of the area did not point toward residential development. The land planner testified that the unloading area would be 320 feet from the nearest residential structure.

         Three neighboring residents and a city council member spoke during the hearing as to the damage done to their properties by a jet-fuel pipeline leak that occurred in the 1980s in the same area, while the property was owned by NuStar Energy, LLC. Epic purchased the property as well as the jet-fuel pipeline from NuStar in 2012.[5] However, NuStar retained responsibility for the jet-fuel leak and its remediation.

         Residents of the nearby neighborhood stated their opposition to the ethanol offloading station, citing their belief that their land was already "contaminated," that this development would further decrease their property values, and that another leak or spill would occur. Elaine Lucas, a member of the Macon-Bibb County Board of Commissioners (the "Board") and the Macon City Council representative for the nearby residents, believed that her constituents were suffering "environmental injustice" and still had no answers about the past jet-fuel pipeline leak.

         The Commission granted Epic's application for rezoning, making the property M-1 in its entirety, but denied the application for a conditional use permit to operate the rail spur and ethanol facility. Following the Commission's denial of the permit application, Epic filed a motion for a rehearing on the matter pursuant to CLDR § 27.13.[6] As part of its motion, Epic submitted revised site development plans, in which the proposed transfer facility was moved to the southern end of the property at a greater distance from the residential neighborhood to the north.[7] The revised plan also included additional engineering and safety controls, such as an earthen berm, which would serve as a containment device if any vapors were released and would run parallel to Barnes Ferry Road, providing an additional barrier between the residential neighborhood; additional fire hydrants; and a security fence to enclose the facility. Additionally, Epic communicated that it had met with a representative of the neighborhood and Elaine Lucas in an effort to coordinate a meeting with local residents to help alleviate their concerns and explain their new development plan.

         Lucas again testified on behalf of the residents at the hearing on Epic's motion for rehearing, stating, "The major concern and the reason we don't want you to approve anything else is we are not sure of what's out there, what's in the ground. We are not sure the level of contamination. We are not sure whether any remediation has been done. . . ." She asked that the Commission defer or deny the motion "until we get some answers [on those issues]" and until the neighborhood could set up a meeting with the Georgia Environmental Protection Division. Some nearby residents again stated their opposition.

         With the general consensus among the Commission being that nothing had changed and ethanol was still hazardous, the motion was denied on January 11, 2016.

         Epic petitioned the superior court for certiorari pursuant to OCGA § 5-4-1 and Section 27.15 of the CLDR, arguing that it "met and exceeded every ascertainable and objective standard, criterion, term, condition and requirement necessary for issuance of the Permit as requested," and that it had "a clear legal right to issuance of the Conditional Use Permit[.]" After a hearing for oral argument, the superior court granted Epic's petition, concluding that the Commission grossly abused its discretion in denying Epic's application. The superior court reversed the Commission's decision and ordered that Epic's conditional use application be granted. The Commission subsequently filed an application for discretionary review, which this Court granted. This appeal followed. Additional facts adduced at the conditional use hearing before the Commission will be cited as necessary to consider the Commission's arguments.

         1. In related enumerations of error, the Commission asserts that the superior court, applying judicial review by certiorari, erred because it weighed the evidence presented before the Commission rather than applying the appropriate any evidence standard. We agree.

         When reviewing a local governing body's zoning decision by writ of certiorari, "[t]he scope of review is limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence." OCGA § 5-4-12 (b). "Substantial evidence" under this section has been consistently interpreted to mean "any evidence." City of Atlanta Government v. Smith, 228 Ga.App. 864, 865 (1) (493 S.E.2d 51) (1997). Thus, in order to reverse the judgment of the Commission, the superior court must conclude that the record below lacked "any" evidence to support the Commission's decision. Jackson County v. Earth Resources, Inc., 280 Ga. 389 (627 S.E.2d 569) (2006). This Court's "standard of review is whether there is any evidence supporting the decision of the local governing body, not whether there is any evidence supporting the decision of the superior court." (Citation and punctuation omitted.) Id.

Neither the superior court nor this Court reweighs credibility determinations of the factfinder. In other words, because the factfinder in the initial proceedings is charged with weighing the evidence and judging the credibility of the witnesses, the superior court and this Court must view the evidence in the light most favorable to the factfinder's decision and must affirm the decision if there is any evidence to support it, even when the party challenging the factfinder's conclusions presented evidence during the initial proceedings that conflicted with those conclusions.

(Citations omitted.) Dekalb County v. Bull, 295 Ga.App. 551, 552-553 (1) (672 S.E.2d 500) (2009).[8]

         Section 303 (2) of the CLDR contains standards to be considered by the Commission, where applicable, in an application for a conditional use ...

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