Jackson County v. Earth Resources, Inc.

• Decision Date: 13 March 2006
• Docket Number: No. S05A1653.,S05A1653.
• Citation: 280 Ga. 389,627 S.E.2d 569
• Parties: JACKSON COUNTY et al. v. EARTH RESOURCES, INC.
• Court: Georgia Supreme Court

280 Ga. 389

627 S.E.2d 569

JACKSON COUNTY et al. v. EARTH RESOURCES, INC.

No. S05A1653.

Supreme Court of Georgia.

March 13, 2006.

Reconsideration Denied April 13, 2006.

Julius M. Hulsey, Paul Bentley Smart, Hulsey, Oliver & Mahar, LLP, Gainesville, for Appellants.

L. Robert Lovett, Lovett, Cowart & Ayerbe, LLC, Macon, Hugh Brown McNatt, McNatt & Greene, Vidalia, for Appellee.

James F. Grubiak, Atlanta, amicus appellant.

HINES, Justice.

Earth Resources, Inc. ("Earth Resources") applied for a conditional use permit to develop 94.48 acres of real property as a construction and demolition landfill. The application was twice presented in public hearings before the Jackson County Planning Commission, during which the Commission heard from the county planning and zoning staff, other governmental personnel, Earth Resources, and citizens. After each hearing, the Planning Commission recommended to the Jackson County Board of Commissioners ("Board") that the special use permit be denied.¹

After the Board's final public hearing,² it denied the application. Earth Resources sought a writ of mandamus to require the Board to issue the permit. On January 14, 2004, the superior court granted certain relief, concluding that there is "a clear right to have all relevant evidence considered by the Board of Commissioners," and for the Board to fail to do so constituted a "gross abuse of discretion." The court ordered the Board to reconsider the application, to consider all relevant facts before it, and to state upon what evidence it relied in "either granting or denying" the application.

Both Earth Resources and the Board moved for clarification of the order. Earth Resources subsequently moved the superior court to: (1) find the Board in civil and criminal contempt; and (2) modify its order of January 14, 2004 so as to order the Board to grant the conditional use permit. On consideration of this motion, the court found that Earth Resources had "presented unrefuted expert testimony that it had met all criteria for the issuance of a special use permit," and ordered the Board to issue the permit.³ This Court then granted Jackson County's application for a discretionary appeal.

"Mandamus will issue against a public officer under two circumstances: (1) where there is a clear legal right to the relief sought, [Cit.], and (2) where there has been a gross abuse of discretion. [Cit.]" City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794, 796(2), 267 S.E.2d 234 (1980). See also Gwinnett County v. Ehler Enterprises, 270 Ga. 570(1), 512 S.E.2d 239 (1999). Contrary to Earth Resources's argument, the Jackson County Zoning Ordinance does not provide that a special use permit must issue as a matter of right if each provision of a set of criteria is met.⁴ Rather, the ordinance sets forth guidelines to follow and minimum requirements to meet, but clearly leaves the Board with discretion.⁵ As the Board's decision was discretionary, the superior court's grant of the writ of mandamus was proper only if the denial of the permit was a gross abuse of discretion. Gwinnett County v. Ehler Enterprises, supra.

34;When reviewing a local governing body's zoning decision, the superior court applies the `any evidence' standard of review. [Cit.]" Fulton County v. Congregation of Anshei Chesed, 275 Ga. 856, 859(2), 572 S.E.2d 530 (2002). "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." Id.

In its order of January 14, 2004, the superior court stated that those who addressed the Board in opposition to the landfill "spoke out of a general aversion to landfills in the area. The opponents to the proposed landfill did not present any expert opinions in support of their position." In its second order, the court stated that Earth Resources "presented unrefuted expert testimony" concerning the appropriateness of a special use permit. But, it is not the law that only expert opinions could be presented to, and considered by, the Board, nor is the superior court to weigh the evidence...