Recycle & Recover, Inc. v. Georgia Board of Natural Resources
Recycle & Recover, Inc. v. Georgia Board of Natural Resources
Opinion of the Court
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 ex
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 SE2d 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 SE2d 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 “[restrictions 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 SE2d 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 SE2d 68) (1974); Bullard v. Holman, 184 Ga. 788, 792 (193 SE 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 at 584 (2) (b). 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. v. Wilhite, 221 Ga. 269 (144 SE2d 357) (1965). However, a property owner “can avail himself of the privilege thereof while it remains in the [statute].” Stone Mountain Indus, v. Wilhite, supra at 269. 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
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 SE2d 40) (1991); Corey Outdoor Advertising v. Bd. of Zoning Adjustment, 254 Ga. 221, 224 (3) (327 SE2d 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 at 423 (1) (citing Southern States Landfill v. Walton County, 259 Ga. 673, 674 (1) (386 SE2d 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 SE2d 123) (1966). Delaying a remedy for three years is not merely procedural and should not, therefore, be applied retroactively. Compare Bullard v. Holman, supra at 791 (2). “[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., p. 399, § 41.09 (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 No. S95A1445. Judgment reversed in Case No. S95A1447.
Concurring Opinion
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)
Given the history to the amendment to OCGA § 12-8-24 (e) (1), this case is factually distinguishable from Banks County v. Chambers of Ga., 264 Ga. 421 (444 SE2d 783) (1994), wherein the landowner engaged in a “ ‘race of diligence’ ” to file its application before a pending zoning change was enacted. Id. at 426 (Hunstein, J., dissenting).
Dissenting Opinion
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.”
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 can
Nor did Recycle obtain a vested right in its application to modify. A person has no vested right in a procedure.
2. A state legislature may enact state laws under the exercise of its police power for the protection of the public “without violating any express or implied constitutional prohibition against retroactive statutes.”
Based on its inherent police power, the legislature passed the solid waste management act to provide for a comprehensive statewide program to assure that landfills do not adversely affect the public health and safety or degrade the environment.
Because of the distinction between a comprehensive state environmental law affecting public health and a local zoning ordinance governing land use, the zoning cases holding that property owners have vested rights do not apply in this case. A permit to handle solid waste is not a local zoning requirement, like a building permit or a special use permit, but is more in the nature of a state licensing requirement. Although both zoning and licensing regulations promote the general welfare, they accomplish this purpose by dissimilar means.
I am authorized to state that Chief Justice Benham and Justice Sears join in this dissent.
See Ga. L. 1994, p. 1922 (codified at OCGA § 12-8-24 (e) (1) (Supp. 1995)).
Hayes v. Howell, 251 Ga. 580, 584 (308 SE2d 170) (1983) (quoting Merchants Bank v. Garrard, 158 Ga. 867, 871 (124 SE 715) (1924)); see also Black’s Law Dictionary 1402 (5th ed. 1979) (defining a vested right as an “[¡Immediate or fixed right to present or future enjoyment and one that does not depend on an event that is uncertain”).
Between the effective date of the 1994 amendment and DNR’s denial of Recycle’s application, Recycle resubmitted its site assessment report, hydro geological assessment report, and design and operation plan.
See Hunter v. Johnson, 259 Ga. 21, 22 (376 SE2d 371) (1989); Pritchard v. Savannah St. &c. R. Co., 87 Ga. 294 (13 SE 493) (1891).
266 Ga. at 255.
See Stone Mountain Indus, v. Wilhite, 221 Ga. 269, 271 (144 SE2d 357) (1965) (upholding the right of a county to increase the time for filing a rezoning application from 12 months to 18 months because the “original provision for a renewed application after 12 months gave no property owner a vested and irrevocable right to apply after 12 months”).
Bullard v. Holman, 184 Ga. 788, 792 (193 SE 586) (1937).
Pope v. City of Atlanta, 242 Ga. 331, 333 (249 SE2d 16) (1978), cert. denied, 440 U. S. 936 (99 SC 1281, 59 LE2d 494) (1979).
See Hayes, 251 Ga. at 585.
See OCGA § 12-8-24 (e) (granting director the power to modify solid waste handling permits according to rules promulgated by the board); cf. OCGA § 12-5-30 (d) (granting the director the power to revoke, suspend, or modify permits to discharge pollutants into waters of state based on any changed condition that requires the discharge to be reduced or eliminated).
OCGA § 12-8-21 (1992); see Solid Waste Management, 7 Ga. St. U. L. Rev. 231 (1990) (describing legislative history of 1990 bills amending the act).
OCGA §§ 12-8-24 (a); 12-8-30.10 (applying to all persons except individuals disposing of solid waste from their residence onto their own land which does not adversely affect the public health).
OCGA § 12-8-23.
OCGA § 12-8-23.1.
Cobb County v. Peavy, 248 Ga. 870, 872 (286 SE2d 732) (1982).
See id. (holding that issuance of a business license is not the same as issuance of a building permit); see also Jackson v. Three Aces Co., 249 Ga. 395, 396 (291 SE2d 522) (1982) (refusing to apply zoning rule in liquor licensing case).
Jackson v. Three Aces Co., 249 Ga. at 396.
264 Ga. 421 (444 SE2d 783) (1994). Even if the case were not distinguishable, its value as a precedent is questionable given that only three justices concurred in both the reasoning and result of the opinion. Two justices concurred in the judgment only, and two justices dissented.
See Jackson v. Three Aces Co., 249 Ga. at 396; cf. City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759) (1944) (a reviewing court should apply the law as it exists at the time of its judgment where the law has been changed and new law impairs no vested right under the prior law).
Reference
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