Earthresources, LLC. v. Morgan County, S06A1150.
| Citation | 638 S.E.2d 325,281 Ga. 396 |
| Decision Date | 30 November 2006 |
| Docket Number | No. S06A1713.,No. S06A1150.,S06A1150.,S06A1713. |
| Parties | EARTHRESOURCES, LLC. v. MORGAN COUNTY, et al. Earthresources, LLC. v. Morgan County, et al. |
| Court | Supreme Court of Georgia |
George E. Butler II, Dahlonega, for Appellant.
Christian Goodloe Henry, Christian G. Henry, LLC, Madison, for Appellee.
EarthResources (Morgan County), LLC. (hereinafter, EarthResources) purchased property in Morgan County zoned for agriculture and sought a written verification of zoning compliance so it could pursue a state permit to build a landfill. See OCGA § 12-8-24(g). EarthResources asserted its plans met zoning requirements because its landfill would be a public utility and public utility structures were permitted uses under the 1997 zoning ordinance then in effect. When the Board of Commissioners denied the verification after a hearing, EarthResources filed a five-count complaint against Morgan County, its Board of Commissioners, the commissioners individually, and the official who initially denied the verification of zoning compliance (hereinafter collectively, Morgan County). The trial court granted Morgan County's motion for summary judgment on all counts. In response to Morgan County's subsequent motion for attorney fees under OCGA § 9-15-14, EarthResources, pursuant to OCGA § 9-11-11.1, the Anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, filed a motion to dismiss the motion for attorney fees. After a hearing, the trial court granted Morgan County's motion and awarded it attorney fees and, in the same order, denied EarthResources' motion to dismiss. In Case No. S06A1150, EarthResources appeals the grant of summary judgment against it and the award of attorney fees, and in Case No. S06A1713, appeals the denial of its Anti-SLAPP motion to dismiss Morgan County's motion for attorney fees.
1. Central to EarthResources' assertion that it was entitled to a written verification of zoning compliance were its claim that its landfill would be a public utility and the provision in the zoning ordinance in effect when this case began that public utility structures were permitted uses in areas zoned for agriculture. Absent a finding that its landfill would be a public utility, EarthResources' claim to entitlement to a verification of zoning compliance is without basis.
Morgan County's zoning ordinance in effect when EarthResources sought verification of zoning compliance defined public utility as follows: "Entities engaged in regularly supplying the public with some commodity or service which is of public consequence or need, regulated and controlled by a state or federal regulatory commission and which may have the power of eminent domain." EarthResources bases its claim that its landfill would be a public utility on the facts that its corporate charter identifies it as such, that it would supply a service the public needs, and that landfills are regulated and controlled by the Environmental Protection Division of the Georgia Department of Natural Resources. The trial court rejected that argument, holding that a privately-owned landfill is not a public utility. We agree.
Looking to Morgan County's zoning ordinance, and accepting for the purpose of argument that EarthResources' proposed landfill would provide a needed public service, the landfill still fails to meet an essential part of the definition, that it be "regulated and controlled by a state or federal regulatory commission." In considering the authority to regulate public utilities, this Court has held that "the Public Service Commission, rather than any other agency of the executive branch, has authority to regulate public utilities." Lasseter v. Georgia Public Service Com'n, 253 Ga. 227(2), 319 S.E.2d 824 (1984). That holding alone is sufficient to exclude the Department of Natural Resources from the role of a state regulatory commission regulating and controlling public utilities and, therefore, to exclude EarthResources' landfill from the category of public utility. That being so, other factors offered by EarthResources in urging its landfill's status as a public utility need not be considered. Since EarthResources' landfill cannot meet the definition in Morgan County's zoning ordinance, the trial court did not err in granting Morgan County summary judgment on that issue, and since that designation was central to EarthResources' claim of entitlement to verification of zoning compliance, the trial court did not err in granting summary judgment to Morgan County as to all of EarthResources' substantive claims.
2. In the trial court, EarthResources contended it was denied due process in the conduct of the hearing before the Morgan County Board of Commissioners (hereinafter, Board) in that the Board limited the time for EarthResources to argue its position and refused to consider printed material provided by EarthResources at the hearing before voting to deny the verification of zoning compliance EarthResources sought. On appeal, EarthResources offers no argument or authority on these issues, asserting only that the trial court was wrong in concluding that the limit on oral presentation time and the failure to read the proffered materials before voting constituted harmless error. Since the record reflects the trial court did not reach such a conclusion, this enumeration of error presents no issue for appellate consideration.
3. EarthResources claimed in its complaint that the decision of the Board denying verification of zoning compliance was invalid because the meeting of the Board at which verification was denied violated the Open Meetings Act, OCGA § 50-14-1. On appeal, EarthResources raises two Open Meetings Act issues: a contention that notice of the meeting was insufficient because the notice was posted at the regular meeting place, but the meeting was conducted at a different location; and a contention that the agenda for the meeting was posted at the wrong site.
Notice of the time and place of meetings subject to the Open Meetings Act is controlled by OCGA § 50-14-1(d), which reads in pertinent part as follows:
Every agency shall prescribe the time, place, and dates of regular meetings of the agency. Such information shall be available to the general public and a notice containing such information shall be posted and maintained in a conspicuous place available to the public at the regular meeting place of...
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