Recycle & Recover, Inc. v. Georgia Bd. of Natural Resources

• Decision Date: 22 January 1996
• Docket Number: S95A1447,Nos. S95A1445,s. S95A1445
• Citation: 266 Ga. 253,466 S.E.2d 197
• Court: Georgia Supreme Court
• Parties: RECYCLE & RECOVER, INC. v. GEORGIA BOARD OF NATURAL RESOURCES (two cases).

Page 197

466 S.E.2d 197

266 Ga. 253

RECYCLE & RECOVER, INC. v. GEORGIA BOARD OF NATURAL RESOURCES (two cases).

Nos. S95A1445, S95A1447.

Supreme Court of Georgia.

Jan. 22, 1996.

Reconsideration Denied Feb. 16, 1996.

Hardy Gregory, Jr., Davis, Gregory, Christy & Forehand, Cordele, Dick Wilson, Jr., Wilson, Brock & Irby, Atlanta, L. Robert Lovett, Macon, for Recycle & Recover, Inc.

Michael J. Bowers, Atty. Gen., Robert S. Bomar, Sr. Asst. Atty. Gen., Barbara H. Gallo, Asst. Atty. Gen., Department of Law, Atlanta, Robert S. Remar, Susan M. Garrett, Kirwan, Parks, Chesin & Remar, P.C., Atlanta, for Georgia Bd. of Natural Resources.

CARLEY, Justice.

The Georgia Board of Natural Resources (Board) issued a permit to Recycle & Recover, Inc. (RRI) for the construction and operation of a solid waste treatment facility. Shortly thereafter, RRI filed an application for a major modification of the facility. Before the Board took final action on RRI's application, the General Assembly amended OCGA § 12-8-24(e)(1) so as to provide that, with one exception not applicable here, a major modification "shall not be granted ... sooner than three years from the date any such facility commenced operation...." Based upon this amendment, the Board denied RRI's application. On petition for judicial review, the superior court found that the Board's decision was appropriate and did not violate RRI's constitutional rights. In Case Number S95A1445, RRI appeals directly and, in Case Number S95A1447, RRI appeals pursuant to this court's grant of its application for discretionary appeal.

1. A superior court's review of the decision of a state administrative agency can be appealed only by means of a granted discretionary application. OCGA § 5-6-35(a)(1); Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (1994). Therefore, we dismiss RRI's direct appeal and address the merits of the appeal brought pursuant to the grant of RRI's discretionary application. Cobb County v. McColister, 261 Ga. 876, 413 S.E.2d 441 (1992).

2. RRI contends that the Board's decision giving retroactive effect to the amendment of OCGA § 12-8-24(e)(1) constitutes an unconstitutional application thereof.

In the exercise of the police power, the General Assembly is authorized to place "[r]estrictions upon land use in order to protect and preserve the natural resources, environment, and vital areas of this state." Ga. Const. of 1983, Art. III, Sec. VI, Par. II(a)(1); Hayes v. Howell, 251 Ga. 580, 585(2)(b), 308 S.E.2d 170 (1983). It was in the exercise of this police power that the General Assembly amended OCGA § 12-8-24(e)(1). An enactment under the police power does not ordinarily violate any constitutional prohibition against retroactive statutes. Nevertheless, our Constitution forbids passage of retroactive laws which injuriously affect the vested rights of citizens. Fortson v. Weeks, 232 Ga. 472, 483-484(7), 208 S.E.2d 68 (1974); Bullard v. Holman, 184 Ga. 788, 792, 193 S.E. 586 (1937). Thus, if RRI has a vested right which would be injuriously affected by application of the amendment of OCGA § 12-8-24(e)(1), then our Constitution requires that that amendment be applied prospectively rather than retroactively.

The term "vested rights" means " 'interests which it is proper for (the) state to recognize and protect and of which (the) individual cannot be deprived arbitrarily without injustice.' [Cits.]" Hayes v. Howell, supra 251 Ga. at 584(2)(b), 308 S.E.2d 170. A statute which confers a right upon an applicant seeking to alter the use of his property confers no vested rights upon all property owners. See Stone Mountain Indus., Inc. v. Wilhite, 221 Ga. 269, 144 S.E.2d 357 (1965). However, a property owner "can avail himself of the privilege thereof while it remains in the [statute]." Stone Mountain Indus., Inc. v. Wilhite, supra at 269, 144 S.E.2d 357. Thus, if a property owner becomes an actual applicant seeking to alter the use of his land, he has a vested right to consideration of his application under the statutory law then in existence. Banks County v. Chambers of Ga., Inc., 264 Ga. 421, 444 S.E.2d 783 (1994). See also Inner Visions, Ltd. v. City of Smyrna, 260 Ga. 902, 400 S.E.2d 915 (1991). Compare Jackson v. Three Aces Co., Inc., 249 Ga. 395, 291 S.E.2d 522 (1982) (involving state authority under the Twenty-First Amendment).

Banks County is not distinguishable on the basis that it involved the question of an applicant's compliance with the local zoning ordinance. See OCGA § 12-8-24(g). Just as requiring permits for solid waste disposal is an exercise of police power, so too is the regulation of zoning. Michiels v. Fulton County, 261 Ga. 395, 397(2), 405 S.E.2d 40 (1991); Corey Outdoor Advertising, Inc. v. Bd. of Zoning Adjustment of the City of Atlanta, 254 Ga. 221, 224(3), 327 S.E.2d 178 (1985). In either instance, our Constitution prohibits a legislative exercise of the police power so as to injure the vested rights of citizens. Thus, Banks County correctly held that the filing of a then-proper application for a sanitary landfill permit gives the landowner a vested right to issuance of the permit. Banks County, supra 264 Ga. at 423(1), 444 S.E.2d 783 (citing Southern States Landfill, Inc. v. Walton County, 259 Ga. 673, 674(1), 386 S.E.2d 358 (1989)).

In the instant case, RRI applied for modification of its permit less than three years after commencing operation of its facility, but before the amendment to OCGA § 12-8-24(e)(1) imposed the three-year waiting period. Giving retroactive effect to the amendment would result in a delay of the decision on RRI's application for three years after operations commenced. " 'Justice delayed is often justice denied.' " Davis v. Davis, 222 Ga. 579, 581, 151 S.E.2d 123 (1966). Delaying a remedy for three years is not merely procedural and should not, therefore, be applied retroactively. Compare Bullard v. Holman, supra 184 Ga. at 791(2), 193 S.E. 586. "[F]or practical purposes the existence of a right depends on the availability of an effective remedy to enforce it." (Emphasis supplied.) 2 Sutherland Stat. Const. § 41.09, p. 399 (5th ed. 1993). It follows that the trial court erred in upholding the Board's decision giving the subsequent amendment to OCGA § 12-8-24(e)(1) retroactive effect over RRI's pre-existing application for modification. However, we do not reach the ultimate question of whether RRI is entitled to issuance of a permit for major modification.

Appeal dismissed in Case Number S95A1445. Judgment reversed in Case Number S95A1447.

All the Justices concur except HUNSTEIN, J., who concurs specially, and BENHAM, C.J., FLETCHER, P.J., and SEARS, J., who dissent.

HUNSTEIN, Justice, concurring specially.

While I do not agree with the majority that the mere filing of an application for a permit by RRI gave it a "vested right" that would bar retroactive application of the amendment to OCGA § 12-8-24(e) (1), I concur in the majority's result because my review of the record shows that RRI had a "vested right" due to RRI's substantial expenditures in reliance upon the permit. ¹ See Banks County v. Chambers of Georgia, 264 Ga. 421, 427, 444 S.E.2d 783 (1994) (Hunstein, J., dissenting). I agree with the majority that our holding that RRI has a "vested right" does not constitute a ruling whether RRI has complied with all the legal requirements for a permit so as to entitle it to issuance thereof.

FLETCHER, Presiding Justice, dissenting.

The majority opinion ignores the facts, misapplies the law, and sets bad policy by ruling that Recycle & Recover, Inc. need not wait the three years now required by law before seeking to expand its Cherokee County landfill by 300 percent. This decision allows Recycle to expand its landfill capacity from 11 million cubic yards to 35 million cubic yards while escaping reasonable statutory requirements. The handling of solid waste is too critical to public health to apply the law as it existed at the time Recycle first filed its application. Because Recycle does not have a vested right to a major modification of its landfill, I dissent.

In 1989, Recycle filed an application for a solid waste handling permit to operate a municipal solid waste landfill in Cherokee County. The Department of Natural Resources in 1992 issued a permit granting Recycle authority to operate the landfill with a capacity of 11 million cubic yards. An administrative law judge affirmed the issuance of the permit a year later. In August 1993, prior to the landfill opening, the company applied for a major modification to increase the landfill's capacity to 35 million cubic yards. Before DNR could approve the application, the legislature amended the Georgia Comprehensive Solid Waste Management Act to prohibit the director from granting a major modification of a landfill "sooner than three years from the date any such facility commenced operation." ² Relying on this amendment, DNR denied Recycle's application for a major modification in January 1995. The trial court upheld the department's decision and Recycle appealed.

1. Contrary to the majority's conclusion, Recycle did not have a vested right to modify its existing solid waste handling permit. " 'To be vested, in its accurate legal sense, a right must be complete and consummated, and one of which the person to whom it belongs cannot be divested without his consent.' " ³ Recycle did not have a consummated right to a permit for a major expansion of its landfill because its application was incomplete when initially filed and when the three-year waiting period became effective. On April 14, 1994, Recycle withdrew a critical document--its site assessment report--in response to DNR's notice setting out the report's deficiencies. As a result, DNR suspended its review of the proposed landfill site pending the resubmission of the assessment report. Thus, when the 1994 amendment went into effect on April 19, 1994, Recycle was not entitled to approval of its...