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Judge hears Bryan landfill suit

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POSTED: May 6, 2013 11:30 p.m.

No ruling was issued Wednesday by Superior Court Judge David Cavendar in the lawsuit Atlantic Waste Services filed against Bryan County claiming its ordinance regarding landfills is unconstitutional.
During a summary judgment hearing at the Bryan County Courthouse in Pembroke, Cavendar listened to arguments from both parties’ legal representatives. Summary judgment is a decision made on the basis of statements and evidence without a trial.
Cavendar said he would make a ruling on the case at a later date, though no time frame was set.
Atlantic Waste’s attorney Harold Yellin told the court the Pooler-based solid waste services company wants the court to rule that Bryan County’s ordinance regarding landfills is unconstitutional and require the county to amend its zoning ordinance “in a manner that will render it constitutional.”
Yellin said Atlantic Waste is challenging two sections of the county’s zoning ordinances — sections 504 and 1116.
Yellin said Section 504, which states if the county commission takes action any party finds contrary to law, that action may be appealed within 30 days. Yellin said this section “is absolutely a contradiction of state law.”
He said section 1116 regarding waste management districts is unconstitutional in part because no piece of property in Bryan County meets the requirements to build a landfill.
“We have a property owner that wants to build a landfill, and we have an ordinance that says ‘Come on, come to Bryan County and build a landfill,’” Yellin said. “But the conditions (in the ordinance) are so restrictive it’s impossible to build, and we have a county where not a single existing parcel complies with the code section.”
The county’s ordinance requirements, which Yellin said are stricter than those required by the Georgia Environmental Protection Division, require a 1,000-foot setback between a landfill and a water source, require a landfill to be accessible from a state or federal highway and prohibit a landfill in any wetlands area.
These requirements, he said, make it impossible to build a landfill in the county.
But Christian Henry, representing Bryan County, said just because the county’s ordinance is more restrictive than the state guidelines does not make it unconstitutional.
“The state regulations and statues relied upon by Mr. Yellin do not declare this is the maximum restriction that can be placed on landfills,” he said. “Those are minimums local governments are within their authority to expand upon or enlarge upon those restrictions, which Bryan County has done.”
Attorney Donald Stack, who intervened in the case to represent a citizens group that is opposed to the Atlantic Waste landfill in Bryan County, agreed.
“(Yellin) said the county’s requirements are contrary to the state’s requirements, but they are more restrictive, not contrary,” Stack said. “The point, your honor, is that the county’s enactment of these restrictions … is rationally related to their goal of protecting the health, safety and welfare of the community.”
Henry went on to argue the county’s ordinance is constitutional. He agreed there are no current properties in the county that would meet the requirements to build a landfill.
“They are correct, there are no parcels as currently constituted in the county that would meet all these qualifications,” Henry said. “But with some minor modifications, subdivisions, combinations, there are numerous parcels that can meet the qualifications of the ordinance to have a landfill.”
Yellin said although the county submitted six different properties that could adhere to the ordinance if manipulated, he didn’t believe that argument was “fair.”
“But we submit to this court that that argument fails,” Yellin said. “The six properties they sent to us that might qualify do not.”
Henry argued it does not matter whether there is any land in the county that meets the ordinance requirements. All that mattered, he said, is whether or not the ordinance is constitutional.
“Plaintiffs really aren’t challenging whether (the ordinance) excludes all landfills or whether or not it’s constitutional,” Henry said. “Their main argument is … claiming that they have a constitutional right to put a regional, municipal solid waste disposal facility on this particular piece of property and there quite simply is no support for that argument. The county’s ordinance is rationally related to … the protection of the people of Bryan County.”
Yellin also argued the ordinance is unconstitutional because of the requirement that a landfill must be accessible from a state or federal highway. He said there is no other zoning district or land use in Bryan County that requires access via a state or federal highway.
“You can look at the most intensive uses in Bryan County, and every use allowed in an industrial district, whether it’s a warehouse, distribution center, borrow pit, lumberyard — it makes no difference,” he said.
He also noted the three major regional landfills in South Georgia — Waste Management and Republic Waste Services in Savannah and Broadhurst landfill in Wayne County — are on county roads.
Henry told the court the requirement to access a landfill via state or federal highway is because those roads typically are built to higher standards.
“There are legitimate reasons to differentiate between industrial property, commercial property and others than is for a landfill,” he said. “For instance, some industrial property has rail access … where as a landfill doesn’t, and most landfills don’t. All the deliveries in and out are coming by truck. Federal and state highways are built to more exacting standards than county roads, therefore they’re less likely to show the damage and wear as a county road would.
“Also, areas where there are industrial and commercial properties generally are more populated and more developed, so that even the city and county streets are built to higher standards to withstand traffic that a rural county road — where this particular property is — simply is not.”

 

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