S. States-Bartow Cnty., Inc. v. Riverwood Farm Prop. Owners Ass'n, Inc.

• Decision Date: 25 March 2015
• Docket Number: No. A14A1562.,A14A1562.
• Parties: SOUTHERN STATES–BARTOW COUNTY, INC. et al. v. RIVERWOOD FARM PROPERTY OWNERS ASSOCIATION, INC. et al.
• Court: Georgia Court of Appeals

331 Ga.App. 878

769 S.E.2d 823

SOUTHERN STATES–BARTOW COUNTY, INC. et al.

v.RIVERWOOD FARM PROPERTY OWNERS ASSOCIATION, INC. et al.

No. A14A1562.

Court of Appeals of Georgia.

March 25, 2015.

Reconsideration Denied April 9, 2015.

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Atlanta, Jones Cork & Miller, Robert Claude Norman Jr., Macon, for Appellants.

Genevieve L. Frazier, Rome, Kimberley Joiner Hale, Atlanta, Kazmarek Mowrey Cloud Laseter, Edward A. Kazmarek, for Appellees.

Opinion

DILLARD, Judge.

In this civil action, Riverwood Farm Property Owners Association, Inc., a group of private property owners in unincorporated Bartow County (“plaintiffs”), sued Southern States–Bartow County, Inc., several companies and individuals with ownership interest in Southern States (collectively “Southern States”), and Bartow County (“County”), alleging that a landfill Southern States proposed to develop on property it owned within the County violated zoning ordinances and should be enjoined. Following a grant of partial summary judgment in favor of the plaintiffs, Southern States appeals, arguing that the trial court erred in (1) finding that a 1993 county zoning ordinance applied to the property; (2) finding that Southern States failed to retain its right to develop a landfill; (3) failing to find that the 1993 zoning ordinance violated the Georgia Constitution; (4) finding, alternatively, that Southern States waived any rights it had when it sought a new landfill permit in 2004; and (5) finding that it had subject-matter jurisdiction, despite the fact that the plaintiffs were also contesting the landfill permit in an administrative proceeding. For the reasons set forth infra, we vacate the judgment and remand for further proceedings consistent with this opinion.

Viewed in the light most favorable to the Southern States (i.e., the nonmoving party),¹ the record shows that in 1989, Southern States filed an application with the Georgia Environmental Protection Division (“EPD”) to develop and operate a solid-waste landfill on property that it owned on Hodges Mine Road in Bartow County. In connection with that application, Southern States was required to obtain a certificate of zoning compliance from the County, demonstrating that the landfill complied with local zoning and land-use ordinances.² But at that time, the County's applicable zoning ordinances did not allow for a landfill on the subject property. And consequently, the County refused Southern States's request for a certificate of zoning compliance. Shortly thereafter, litigation ensued.

In 1991, in a separate but somewhat related action, the Supreme Court of Georgia declared the Bartow County zoning ordinance to be invalid on the ground that the County failed to comply with the Zoning Procedures Law.³ And as a result, the Supreme Court held that there was “no valid restriction on the property, and the [property owner] has the right under the law to use the property as it so desires.”⁴ Then, on September 22, 1994, the Superior Court of Bartow County—in light of the Supreme Court's decision—issued an order, in which it ruled that because no valid zoning ordinance controlled in 1989 when Southern States submitted its landfill-permit application, Southern States had “a vested right to obtain a certificate of the right to use their real property without county land use restrictions ... despite the enactment of a subsequent zoning ordinance.” Accordingly, the superior court ordered the County to issue the necessary certificate, and it enjoined the County from prohibiting Southern States's operation of a landfill on the subject property.

Shortly thereafter, Southern States requested and received a certificate of zoning compliance from the County. Nevertheless, while it continued internal discussions and evaluations regarding development of the landfill for nearly ten (10) years, Southern States did little, if anything, toward moving the project forward and submitted no additional information, including the certificate of zoning compliance, to the EPD.

Eventually, in 2004, Southern States submitted what was characterized as a new permit application for a “Construction and Demolition” landfill. And although under the zoning ordinances in place at that time a landfill on the property was not a permitted use, the County—assuming that it was still constrained by the 1994 Superior Court order—issued a certificate of zoning compliance in support of Southern States's application. Still, the process dragged on for nearly another decade. And in January 2012, Southern States submitted to the EPD yet another certificate of zoning compliance issued by the County.

On May 23, 2013, while Southern States's application was still pending with the EPD, plaintiffs filed a complaint for declaratory judgment and injunctive relief against Southern States and the County, alleging that the proposed landfill violated County zoning ordinances. Later, plaintiffs amended their complaint to include claims for anticipatory nuisance and violations of Georgia's Racketeer Influenced and Corrupt Organizations (“RICO”) Act.⁵ Southern States and the County filed answers, and in May 2013, Southern States filed a motion to dismiss, which the trial court denied.

On November 12, 2013, plaintiffs filed a motion for partial summary judgment, arguing that, based on the 1993 zoning ordinance in force at the time the superior court issued the 1994 order (ruling that Southern States had a vested right to operate a landfill), Southern States's vested right lapsed because it failed to commence using the property as a landfill within one year. The plaintiffs also contended that, notwithstanding the 1994 order, because Southern States sought a new EPD permit for the landfill in 2004, its actions were governed by the zoning ordinances in place at that time, which prohibited such use.

Shortly thereafter, on November 14, 2013, the EPD finally issued a solid-waste handling permit to Southern States, allowing it to develop and operate a landfill on its Hodges Mine Road property. Consequently, Southern States reasserted its motion to dismiss plaintiffs' nuisance claim, arguing that plaintiffs were required to challenge the grant of the EPD permit via an administrative proceeding before seeking relief in the superior court.⁶ In that same motion, Southern States also sought dismissal of the plaintiffs' RICO and punitive-damages claims.

On December 30, 2013, following a hearing on all the pending motions, the trial court granted the plaintiffs' motion for partial summary judgment, finding that whatever vested right Southern States may have had (under the 1993 zoning ordinance) lapsed when it failed to commence using the property as a landfill within one year. The trial court also ruled, alternatively, that Southern States applied for a new permit with the EPD in 2004, and therefore, the County should have applied the “then-current” zoning ordinance to its determination of whether to issue another certificate of zoning compliance. Additionally, the trial court granted Southern States's motion to dismiss the plaintiffs' RICO and punitive-damages claims, but denied the motion to dismiss the anticipatory-nuisance claim.

Southern States then filed an appeal in the Supreme Court of Georgia, challenging the trial court's grant of partial summary judgment in favor of the plaintiffs and the court's denial of its motion to dismiss plaintiffs' anticipatory-nuisance claim. However, the Supreme Court held that the issues on appeal failed to invoke its jurisdiction over equity cases or constitutional questions, and thus, transferred the matter to this Court.⁷ This appeal follows.

At the outset, we note that it is well established that summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”⁸ If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of OCGA § 9–11–56(c) have been met.”⁹ And in our de novo review of a trial court's grant of a motion for summary judgment, we are charged with “viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.”¹⁰ Furthermore, we similarly apply a de novo standard of review to the trial court's denial of a motion to dismiss.¹¹ With these guiding principles in mind, we turn now to Southern States's specific claims of error.

1. Southern States contends that the trial court erred in denying its motion to dismiss plaintiffs' anticipatory-nuisance claim. Specifically, it argues that the court erred in finding that it had subject-matter jurisdiction over the case despite the fact that the plaintiffs were also contesting the landfill permit in an EPD administrative proceeding. Because subject-matter jurisdiction is a threshold issue,¹² we will address this claim first and, in doing so, hold that the trial court did not err.

As noted supra, after plaintiffs filed this lawsuit—in fact only shortly before the trial court granted the plaintiffs partial summary judgment—the EPD granted Southern States's permit application. Immediately thereafter, plaintiffs challenged that administrative grant under OCGA § 12–2–2(c)(2)(A), which provides:

Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge of the Office of State Administrative Hearings assigned under Code Section 50–13–40 and acting in place of the Board of Natural Resources....

In light of this statute, Southern States argues that plaintiffs should have...