James Emory, Inc. v. Twiggs County, Ga.

• Decision Date: 10 May 1995
• Docket Number: Civ. A. No. 94-273-3-MAC (WDO).
• Citation: 883 F. Supp. 1546
• Parties: JAMES EMORY, INC., Plaintiff, v. TWIGGS COUNTY, GA., et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

883 F. Supp. 1546

JAMES EMORY, INC., Plaintiff, v. TWIGGS COUNTY, GA., et al., Defendants.

Civ. A. No. 94-273-3-MAC (WDO).

United States District Court, M.D. Georgia, Macon Division.

May 10, 1995.

COPYRIGHT MATERIAL OMITTED

John Wayne Crowley, Michelle Lee Schieber, Macon, GA, for James Emory, Inc.

Mitchel P. House, Jr., Brian J. Passante, Macon, GA, for Twiggs County, GA, Twiggs County Bd. of Com'rs, William E. Hamrick, III, M. Opal Chance, Bobby Stripling, Tommie L. Bryant, and William Bond.

Theodore Freeman, Atlanta, Mitchel P. House, Jr., Macon, GA, Joseph Alexander Boone, Irwinton, GA, Philip W. Savrin, Atlanta, GA, for Wilkinson, GA, Wilkinson County Bd. of Com'rs, Jim Howell, William Frank Bloodworth, Kenneth L. Turner, John Williams, and W.E. Williams.

ORDER

OWENS, District Judge.

Before the court is the Twiggs County defendants' motion for summary judgment. Defendants' motion was initially couched in the form of a dismissal pursuant to Federal Rule of Civil Procedure ("FED.R.CIV.P.") 12(b). Alternatively, defendants sought a determination of the status of plaintiff's claims under FED.R.CIV.P. 56, allowing courts to award summary judgment. Because matters outside of the pleadings would necessarily be considered by the court in deciding these motions — plaintiff, for example, originally filed an affidavit of one of its corporate officers — the court elected to convert defendants' entire motion to one for summary judgment. See FED.R.CIV.P. 12(c).¹ The Wilkinson County defendants, who have also moved for dismissal or summary judgment, are handled under separate order. After careful consideration of the arguments of counsel, the relevant caselaw, and the record as a whole, the court issues the following order.

I. INTRODUCTION

A. Statement of Facts

Plaintiff James Emory, Inc., a land development corporation, bought a 273.65 acre tract of land located in Twiggs County on April 29, 1987. The tract consisted of four quadrants: parcel X (61.67 acres), parcel Y (57.36 acres), and Blocks A and B (respectively subdivided into 9 and 7 lots) (154.62 acres). Plaintiff originally contemplated the subdivision and resale of the subject property as a residential area. Donald Watson purchased an option as to Blocks A and B on November 2, 1988, in the name of an undisclosed principal. Watson exercised this option, again on behalf of the undisclosed principal, thus precipitating the eventual transfer of the land from plaintiff to the undisclosed principal, defendant Twiggs County, on April 27, 1989.

For some indeterminate time prior to April 1989, defendants had been studying and formulating for eventual adoption a comprehensive solid waste management plan in conjunction with Wilkinson County. Under Official Code of Georgia Annotated ("O.C.G.A.") § 12-8-31.1, each city and county in Georgia was required to have "developed or been included in a comprehensive solid waste management plan not later than July 1, 1993." That section further contemplates joint plans, such that counties like Wilkinson and Twiggs could collaborate on a plan's formulation.

Shortly after the April 27 transfer, defendant began the process of developing Blocks A and B ("defendants' land") as a municipal solid waste landfill ("MSWL").² The county-maintained road providing access to and from the land, including plaintiff's remaining contiguous parcels X and Y ("plaintiff's land"), came to be popularly known as Landfill Road (Complaint, exh. L).³ Because of its new neighbor, plaintiff reconsidered its original plans to develop parcels X and Y as a residential subdivision, and began to entertain the notion of developing a MSWL of its own.

Plaintiff then undertook the initial steps in the MSWL development process, including consultation with engineers and other landfill owners and operators. Plaintiff also directed its attorney, Charles M. Leverett, to contact defendant regarding the existence of any land use or zoning ordinances that would conflict with the development of plaintiff's land as a MSWL. By letters dated March 12, April 30, and June 3, 1991, Leverett requested a "zoning letter" from defendants containing that information. Defendants did not tender an immediate response.

Between April 30 and June 3, 1991 (plaintiff's second and third letters), defendants adopted on May 7, 1991 a local resolution as follows:

Commissioner Bond moved that no property in the County be used for the development of a landfill of any kind unless we set up ourselves to entertain such. Floyd seconded. Unanimous vote. Motion carried.

Up to this time, defendants did not have a comprehensive land development ordinance ("CLDO") nor standards and procedures governing the exercise of zoning powers in relation to the unincorporated section of Twiggs County.⁴

Towards the end of 1991, defendants decided to have the Middle Georgia Regional Development Center ("RDC") "proceed with a Land Use Plan and an impact statement for Twiggs County." See Minutes of Twiggs County Board of Commissioners (Oct. 15, 1991). Ralph Nix, assistant executive director of the RDC, stated that the Twiggs/Wilkinson municipal solid waste plan "was developed in compliance with pertinent Georgia statutes and regulations, and was further approved by the Georgia Department of Community Affairs as being in compliance with pertinent statutes and regulations of the State of Georgia." See Nix Supp.Aff., at ¶¶ 4-5.

Another resolution affecting plaintiff's land was also adopted before the zoning letter was ultimately sent. On July 23, 1992, the Twiggs County Board of Commissioners elected to close that portion of Landfill Road running through Blocks A and B. Plaintiff contends that the road closure left its property without a means of public access, notwithstanding representations to the contrary within the road closing ordinance.⁵ Plaintiff further disputes the resolution's declaration that notice was provided it as one of two landowners adjacent to Landfill Road and therefore affected by its closure, claiming that notice was not received by it until August 28, 1992. See Complaint (exh. L).⁶ After the resolution effecting the road's closure was passed, plaintiff did not lodge any complaint, comment, or request for reconsideration with the Twiggs County Board of Commissioners until March 29, 1994, well over one year after the decision to close the road, when "attorneys for Plaintiff wrote Robin McGuffin asserting that James Emory, Inc. d/b/a Oco Resources was making a claim against Twiggs County because of the road closing." See McGuffin Aff., at ¶¶ 3-4.⁷

The zoning letter requested by plaintiff in March, April, and June of 1991 was eventually sent on September 9, 1992, see Complaint (exh. I),⁸ and plainly stated that "the referenced property is not subject to a local zoning/land use plan or ordinance which was adopted by this local governmental body." However, the letter qualified itself by stating that it did not "in anyway ... grant or acknowledge the use of plaintiff's property as a solid waste handling facility without compliance with the Comprehensive Land Use Plan and Zoning Ordinance" to be adopted by the County Commission.

With letter in hand, plaintiff was seemingly prepared to begin the arduous permitting process associated with construction of a MSWL. Indeed, shortly after receiving the letter, plaintiff filed its first application. On October 14, 1992, plaintiff tendered applications to the Environmental Protection Division ("EPD") of the Georgia Department of Natural Resources for a permit to construct a materials recovery and processing facility, a biomedical incinerator, a construction and demolition disposal site, a MSW incinerator, a composting site and facility, a commercial and industrial waste disposal facility, and a MSWL. EPD's initial response identified multiple deficiencies in plaintiff's applications, none of which were caused by defendants' delay in issuing the zoning letter. See, e.g., letter from Dunbar to Hardie (11/2/92); infra note 14. To remedy these, plaintiff's consulting engineers resubmitted the corrected applications on November 6, 1992.

But by December 8, 1992, plaintiff was only seeking permission for a MSWL. Along with its letter informing EPD that it had abandoned all applications excepting that for the MSWL, plaintiff resubmitted its application and a previous geologic assessment report (dated February 1989) on the site. Consideration of plaintiff's MSWL application then came to a standstill on December 21, 1992, when EPD informed plaintiff that the assessment report as submitted was doubly insufficient. First, the report had been prepared for the Twiggs County Board of Commissioners, not plaintiff. Thus for plaintiff to use the report permission would have to be obtained from defendants. Second, the thencurrent assessment report requirements, different from those in place when the Twiggs submission was made, potentially rendered the study obsolete. Plaintiff has since discontinued its pursuit of EPD approval.⁹

As defendants indicated in the zoning letter issued to plaintiff, the county was planning to adopt standards and procedures for zoning and a CLDO for the unincorporated portion of the county. Twiggs County eventually adopted standards and procedures governing the exercise of zoning powers in the unincorporated section of the County on May 23, 1994. See Resolution 94-9. At this meeting, the Twiggs County Board of Commissioners also adopted the CLDO for the unincorporated area of the County. See Resolution 94-10. The CLDO, according to certified copies of documents introduced through affidavit testimony, was approved by the Georgia Department of Community Affairs prior to its adoption by defendants. See Nix Aff., at ¶ 7. Ralph Nix also testified by way of affidavit that, during the formulation of the CLDO, proper notice was given for required hearings and that those hearings were held. See Nix Aff., at ¶ 6 (referencing attached copies of...