Grove v. Sugar Hill Inv. Associates, Inc.
Decision Date | 20 December 1995 |
Docket Number | A95A1137,Nos. A95A0979,MID-AMERICAN,s. A95A0979 |
Citation | 466 S.E.2d 901,219 Ga.App. 781 |
Parties | GROVE et al. v. SUGAR HILL INVESTMENT ASSOCIATES, INC. et al.WASTE SYSTEMS OF GEORGIA, INC. et al. v. SUGAR HILL INVESTMENT ASSOCIATES, INC. et al. |
Court | Georgia Court of Appeals |
Solid Waste Management Act. Gwinnett Superior Court. Before Judge Bishop.
Boyce, Ekonomou & Atkinson, Peter F. Boyce, Atlanta, Catherine M. Packwood, Duluth, for appellants in case no. A95A0979.
Dan A. Aldridge, Jr., Chad K. Reed, Atlanta, for appellants in case no. A95A1137.
Kirwan, Parks, Chesin & Remar, Robert B. Remar, Susan M. Garrett, Atlanta, for appellees.
The appeal involves the validity of a city council resolution approving a "restated lease and operating agreement" between the City of Sugar Hill ("City") and its solid waste treatment provider, Mid-American Waste Systems of Georgia, Inc. ("Mid-American"). The lease agreement included provisions for the potential expansion of an existing landfill. Mid-American, Grove, and Driver enumerate as error the trial court's denial of their motions for summary judgment and the grant of summary judgment to plaintiffs on one count of plaintiffs' complaint in this declaratory judgment action. A direct appeal is authorized by OCGA § 9-11-56(h) and Southeast Ceramics v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).
Plaintiffs Sugar Hill Investment Associates, Inc. ("SHIA"), Albertson, Parker, Wayne and Louise Ballew, Bagley, and "HOPE" (Homeowners for a Positive Environment, Inc., a non-profit corporation organized to promote ecologically sound land use), initially moved for a temporary restraining order to prevent the City from adopting the agreement. The individual plaintiffs and SHIA own property near the landfill. Defendants Grove and Driver, sole stockholders of Mid-American's predecessor with direct financial interest in the landfill due to a contract with Mid-American, were permitted to intervene.
After the trial court denied plaintiffs' motion for a temporary restraining order, the city council adopted the agreement at a meeting on August 9, 1993, and authorized its execution. Subsequently plaintiffs were awarded summary judgment on one count on the basis that the lease agreement provided for the location of additional acreage for a landfill and therefore constituted a siting decision which required prior public notice by publication under OCGA § 12-8-26(b). The trial court concluded that the failure to give the public notice rendered the City's action ultra vires and the agreement void.
After an election changed the composition of the city council, the City realigned itself in this action and admitted that the agreement provided for siting an expanded landfill and was therefore void. The City has not joined in this appeal. Thus, Grove and Driver's argument that the City is estopped from attacking the validity of the agreement has no bearing on this appeal. Nor does their unsupported argument that the estoppel would extend to plaintiffs by virtue of the City's actions.
By lease agreements in 1985 (for thirty-eight acres) and 1989 (for six acres), the City leased to Mid-American's predecessor, for use as a sanitary landfill site, a forty-four acre tract the City owned. The updated agreement at issue sets out the parties' obligations in relation to the operation of the landfill.
It also provides in paragraph 15 for the expansion of the landfill to 216.27 additional acres of identified parcels bordering the 44 acres, which was not previously designated for use as a landfill, and was not yet owned by the City or Mid-American. The latter agreed to acquire it and deed it to the City before the end of 1993; when that was done, it would become subject to the lease agreement. Paragraph 16 provides that the contractor (Mid-American) will convey to the City 60 acres it owns, within 90 days, which acreage shall be subject to the lease agreement, except that the contractor retains a reversionary interest in the event it cannot get or chooses not to obtain a sanitary landfill permit for its use. That paragraph also subjects to the lease agreement 30 acres the City owns, "for use as landfill property."
The agreement's introduction states:
1. Grove, Driver, and Mid-American argue that the trial court erred in concluding that the agreement constitutes a siting decision within the meaning of OCGA § 12-8-26(b), because it does not locate or transfer or affect any more property than is already subject to existing leases with the City. They maintain it simply identifies certain parcels of land that Mid-American might deed to the City in the future and that they might wish to develop as part of the landfill. They assert that the lease agreement provides that in order for these additional properties to become landfill sites, they would have to comply with all of the applicable laws, regulations, and ordinances. At that time, the siting decision would have to be made, pursuant to OCGA § 12-8-26(b). Alternatively, the defendant-appellants contend that even if the lease agreement constitutes a siting decision, the agreement is not void and the remedy is to require the City to hold properly noticed hearings.
The Solid Waste Management Act, OCGA § 12-8-1 et seq., requires municipalities to publish a notice in a newspaper of general circulation at least once a week for two weeks before "taking action resulting in a publicly or privately owned municipal solid waste disposal facility siting decision." OCGA § 12-8-26(b). Siting decisions include, but are not limited to, "such activities as the final selection of property for landfilling and the execution of contracts or agreements pertaining to the location of municipal solid waste disposal facilities within the jurisdiction." Id.
Clearly, the agreement pertains to the location and expansion of the City's landfill facilities and therefore is a siting decision within the meaning of OCGA § 12-8-26(b). It constitutes mutual obligations designating specified additional parcels for landfilling, to be added at the option of Mid-American alone, subject to permitting and other applicable laws for landfills. The agreement itself provides: "Contractor shall use the Leased Premises as a sanitary landfill...." Also, the City is obligated to assist Mid-American to obtain the necessary permitting.
We reject Grove and Driver's argument that, because the new property is contiguous to the existing landfill, the adoption of the agreement is not a siting decision. Such reasoning, taken to its logical conclusion, would allow for unlimited landfill expansion without public notice, so long as the additional property bordered an existing landfill. This does not conform to the legislature's purpose in enacting the Solid Waste Management Act, OCGA § 12-8-21(a).
2. It is undisputed that the City failed to provide the statutory notice of the meeting in which the city council adopted the agreement at issue, as required under OCGA § 12-8-26(b). The only notices were those posted on the City Hall notice posting board and at the end of the street in front of City Hall on August 6. The posted agenda listed, as a committee report, "Solid Waste: Proposed Restated Lease & Operating Agreement with Mid-American." At issue is the effect of the failure to give the requisite notice.
Municipalities have only limited power to enter into contracts and "[i]f a contract is beyond the power or competence of the local government, then the contract is termed ultra vires and is void." Precise v. City of Rossville, 261 Ga. 210, 211(1), 403 S.E.2d 47 (1991). For an act to be considered ultra vires, City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 539(7)(a), 422 S.E.2d 651 (1992); R.P. Sentell, Jr., Local Government and Contracts that Bind, 1969 Ga.L.Rev., pp. 546, 548.
Under some circumstances, as with the eight acres for which the State granted a landfill permit, and the balance of the forty-four acres which was already subject to landfill leases with the City, the City had the undisputed power and authority to enter into a new lease for the property to continue in use as a landfill. Thus, the ultra vires doctrine would not nullify the adoption of the entire agreement. However, officials' actions may be set aside "if they fail to comply with the law in the exercise of their discretion." Lindsey v. Guhl, 237 Ga. 567, 570(II), 229 S.E.2d 354 (1976). Due process as set out in the law must be followed. We conclude that the failure to comply with OCGA § 12-8-26(b) by necessity invalidates that portion of the agreement relating to the siting decision--that portion of the agreement pertaining to the expansion of the acreage of the municipal solid waste disposal facility. Johnson v. Rogers, 214 Ga.App. 557, 558(1), 448 S.E.2d 710 (1994) ( ).
Mid-American's solution, that the...
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