Brantley Cnty. Dev. Partners, LLC v. Brantley Cnty.
| Decision Date | 14 May 2021 |
| Docket Number | CV 5:19-109 |
| Parties | BRANTLEY COUNTY DEVELOPMENT PARTNERS, LLC, Plaintiff, v. BRANTLEY COUNTY, GEORGIA BY AND THROUGH its CHAIRMAN AND MEMBERS OF the BRANTLEY COUNTY BOARD OF COMMISSIONERS; Chris "Skipper" Harris, Randy Davidson, Brian Hendrix, Jesse Mobley, and Ray Griffin, all in their individual and official capacities as Commissioners, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
George H. Rountree, Kathy L. Anderson, Brown Rountree, PC, Statesboro, GA, Jeffrey R. Davis, Pro Hac Vice, Kyler L. Wise, Pro Hac Vice, Wilson Brock & Irby, LLC, Atlanta, GA, Linwood Robert Lovett, Macon, GA, Mark David Johnson, Gilbert, Harrell, Sumerford & Martin, PC, Brunswick, GA, for Plaintiff.
Dana K. Maine, Freeman, Mathis & Gary, LLP, Forest Park, GA, Rachael Slimmon, Freeman, Mathis & Gary, LLP, Atlanta, GA, for Defendants.
Before the Court is Plaintiff's Motion for Preliminary Injunction. Dkt. No. 58. For the reasons below, Plaintiff's Motion is GRANTED .
Plaintiff Brantley County Development Partners, LLC ("Plaintiff"), is a limited liability company registered to do business under the laws of the State of Georgia. Dkt. No. 1 ¶ 1. On December 22, 2014, Plaintiff purchased 2,839 acres of land in Brantley County (the "Property") to pursue the construction and operation of a solid waste handling facility. Id. ¶ 9. Under the provisions of Georgia's Comprehensive Solid Waste Management Act (the "CSWMA"), O.C.G.A. §§ 12-8-20 et seq., any person seeking to operate a solid waste handling facility must obtain a solid waste handling permit by application to the Georgia Environmental Protection Division (the "EPD"). In order to proceed through the EPD's permitting process, the applicant must submit certain letters from the local governing authority certifying that the proposed site complies with local land use ordinances and is consistent with the local solid waste management plan. O.C.G.A. § 12-8-24(g).
Before closing on the Property, Plaintiff sought and obtained written verification (the "2014 Verification Letters") from County Manager Carl Rowland ("Rowland") certifying that Plaintiff's proposed solid waste handling facility (the "Proposed Facility") was consistent with Brantley County's solid waste management plan ("SWMP") and local land use plan. Dkt. No. 1-2 at 3. At that time, Brantley County did not have any zoning ordinances in effect at all. Id. at 2.
On February 5, 2015, at a regularly scheduled meeting, the Brantley County Commission, through its Board of Commissioners ("Defendants"),1 took official action to authorize Plaintiff's Proposed Facility. Dkt. No. 1-4 at 4. The minutes and regular agenda show Plaintiff requested Defendants ratify and confirm the Proposed Facility and related activities were "consistent with [the] local land use plan and [the] Solid Waste Management Plan." Id. Consequently, Defendants authorized the Chairman of the Board of Commissioners, Charlie Summerlin, to execute two letters:
[T]he first letter acknowledging that the solid waste handling facilities proposed by [Plaintiff] ... is consistent with the approved Solid Waste Management Plan adopted by Brantley County and the cities of Hoboken and Nahunta on June 26, 2006, and our most recent 2011 Five Year Short Term Work Program 2010-2019; and, the second letter acknowledging that the facilities proposed by [Plaintiff] is consistent with Brantley County's Local Land Use Plan.
Id. The minutes acknowledge that these letters were necessary for Plaintiff to obtain permits from the EPD in order to conduct solid waste material activities. Id.
On February 6, 2015, Chairman Summerlin allegedly signed and issued the letters to Claudia Moeller, an EPD program manager, verifying Plaintiff's Proposed Facility was consistent with the County's SWMP and local land and zoning regulations (the "2015 Verification Letters"). Dkt. No. 1-5 at 3. These letters reiterated that "Brantley County at the present time does not have a zoning ordinance." Id. at 2.
On September 8, 2016, Defendants voted to adopt a new land-use ordinance for Brantley County (the "2016 Zoning Ordinance"). Dkt. No. 1-7. Plaintiff contends, however, that it received assurances from Defendants that this zoning would not apply to its Proposed Facility. Dkt. No. 1 ¶ 18. As such, on December 29, 2016, Plaintiff filed a permit application for the Proposed Facility with the Georgia EPD. Dkt. No. 1-11. The EPD accepted the application along with a filing fee for processing. Dkt. No. 58-1 ¶ 9. Plaintiff insists it complied with all applicable state laws and EPD rules and regulations with respect to the submission of its EPD application. Id. ¶ 10.
Beginning in 2017, a noticeable shift occurred in Defendants’ stance toward the siting and construction of a solid waste handling facility on Plaintiff's Property. On January 3, 2017, Defendants imposed a 180-day moratorium on any landfills in Brantley County. Dkt. No. 1-12. That same day, Defendants also moved to send a written objection to the EPD regarding Plaintiff's Proposed Facility. Dkt. No. 1-14 at 2. The January 3, 2017 Board minutes show that Defendants moved to instruct all county officials to "immediately cease and desist any communications or efforts with [Plaintiff] or any other individual or entity where the intent is to establish or facilitate a landfill or solid waste handling facility." Id. at 3.
On January 6, 2017, County Attorney Deen Strickland, on behalf of Defendants, sent a letter to the Georgia EPD stating that Defendants were unanimously opposed to Plaintiff's Proposed Facility and advising the EPD that Defendants had passed a moratorium on the proposed location. Dkt. No. 1-16 at 2.
On June 15, 2017, Defendants adopted a new county-wide zoning ordinance (the "2017 Zoning Ordinance"). Dkt. No. 58 at 7; Dkt. No. 58-2 ¶ 15. Under this new zoning ordinance, landfills are prohibited on property zoned as "light industrial," which Plaintiff's Property was so designated.2 Dkt. No. 86-4 at 2. That same day, Defendants also adopted an amended Solid Waste Management Plan (the "2017 SWMP"). Dkt. No. 58-4 at 156. The 2017 plan, as amended, prevents Plaintiff from importing any waste from outside the County, stating:
any future waste disposal facilities, whether landfill or thermal energy, or other, should be constructed on a size-need basis dependent upon waste generated within the County and its municipalities. Brantley County ... must limit use of such sites to disposal of wastes generated from only within the County.
Id. at 211 (emphasis added).
However, soon thereafter, the County Attorney ostensibly realized that, due to a clerical error, the Board's resolution adopting the 2017 SWMP mistakenly had a draft copy of the plan attached to it.
Dkt. No. 64-6 at 4. The correct version of the 2017 SWMP omits reference to any prohibition on importation of out-of-county waste. Compare Dkt. No. 58-4 at 211 with Dkt. No. 64-6 at 11. On August 6, 2020, Defendants remedied this mistake by passing an amended SWMP (the "2020 SWMP"), which does not state that a solid waste management facility is limited only to the waste of the County. Dkt. No. 64-6 at 4.
Nonetheless, on June 19, 2019, Plaintiff sent a demand letter to Defendants requesting they certify in writing that Plaintiff's Proposed Facility is subject to neither the 2017 Zoning Ordinance nor the 2017 SWMP. Dkt. No. 58-3 at 102. Defendants did not provide the requested confirmation. Dkt. No. 1-26 at 3.
On May 28, 2020, the Georgia EPD issued a Site Suitability Notice confirming that Plaintiff's Proposed Facility can safely meet applicable state laws and EPD regulations. Dkt. No. 48-2. However, before a permit may be issued, Plaintiff must submit a Design and Operational Plan ("D&O Plan"), a public hearing transcript, and a reaffirmation of zoning consistency3 to the EPD Id. No decision will be made by the EPD until each required submittal is received. Dkt. No. 88-5 at 125.
Defendants continue to refuse to provide the necessary reaffirmation of zoning consistency that Plaintiff has requested. Dkt. No. 66 at 59-60. Instead, on July 9, 2020, Defendants adopted a resolution withdrawing the 2015 Verification Letters originally issued by the Brantley County commissioners, asserting that the letters were illegally issued, and thus, void. Dkt. No. 52-5 at 2, 3. Defendants acknowledged that the 2015 Verification Letters were required for Plaintiff to obtain a permit for a solid waste handling facility. Id. at 3.
On July 17, 2017, Plaintiff filed a timely complaint against Defendants in the Superior Court of Brantley County (the "State Court Action"). Dkt. No. 52-1. On November 12, 2019, Plaintiff amended its complaint in the State Court Action to assert federal claims for violation of the Takings Clause, procedural and substantive due process violations, and violation of the First Amendment.4 Dkt. No. 48-1. On November 13, 2019, Plaintiff voluntarily dismissed its complaint in the State Court Action without prejudice. Dkt. No. 52-3.
On November 26, 2019, Plaintiff filed the present action against the County and its members of the Board of Commissioners, both in their official and individual capacities. Dkt. No. 1. Thereafter, on July 8, 2020, Plaintiff amended its complaint to include a claim for violation of the Dormant Commerce Clause of the United States Constitution. Dkt. No. 45 ¶¶ 148-50, 161-63 (the "Amended Complaint"). In its Amended Complaint, Plaintiff challenges the constitutional validity of Brantley County's regulations and prays for injunctive relief barring the enforcement of the regulations. Id. ¶ 170. Plaintiff likewise requests an order requiring Defendants to provide any and all necessary certification(s) to the EPD so Plaintiff's permitting process can proceed. Id. at 9-11. On July 22, 2020, Defendants filed a motion to dismiss the Amended Complaint. Dkt. No. 48.
On September...
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