Bartram Environmental, Inc. v. Reheis

509 S.E.2d 114, 235 Ga. App. 204, 98 Fulton County D. Rep. 4212, 1998 Ga. App. LEXIS 1473
CourtCourt of Appeals of Georgia
DecidedNovember 10, 1998
DocketA98A2239
StatusPublished

This text of 509 S.E.2d 114 (Bartram Environmental, Inc. v. Reheis) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartram Environmental, Inc. v. Reheis, 509 S.E.2d 114, 235 Ga. App. 204, 98 Fulton County D. Rep. 4212, 1998 Ga. App. LEXIS 1473 (Ga. Ct. App. 1998).

Opinion

Judge Harold R. Banke.

Bartram Environmental, Inc. (“Bartram”) appeals from a superior court order affirming the decision of an administrative law judge which upheld the State’s denial of Bartram’s application for a solid waste landfill permit. Greg A. Emmons, Ron Smith, and Citizens for a Better Jackson County, Inc. (hereinafter “Intervenors”) opposed the issuance of a permit.1

The underlying case arose after Bartram applied to the Environmental Protection Division (“EPD”) of the Georgia Department of [205]*205Natural Resources for a solid waste handling permit for the construction and operation of a municipal landfill to be built on 402 acres in the City of Arcade (“City”). After extensive planning and expenditures, Bartram requested the City to hold the final public hearing mandated by OCGA § 12-8-24 (d). The City scheduled and advertised the hearing for November 6, 1996, at the Arcade City Hall at 7:00 p.m. In the meantime, the Intervenors sought injunctive relief against the City. On November 1, the trial court issued an order permanently enjoining the City from taking any actions regarding Bar-tram and the proposed landfill site. A few days later, David H. Flint, the attorney for both the City and for Bartram, confirmed with the court that the order enjoined the City from conducting the scheduled public hearing. As a result, the City canceled the public hearing which it had advertised for November 6.

It is undisputed that the EPD cannot issue a permit without (1) a public hearing held “by the governing authority” (of the county or city) in which the solid waste handling facility is to be located; (2) on a date not less than two weeks before the time the permit is to be issued; (3) with at least thirty days advance notice of such hearing posted at the proposed site; and (4) advertised in a newspaper of general circulation serving the county of the proposed activity. OCGA § 12-8-24 (d).

After verifying that the City was absolutely prohibited from holding the scheduled public hearing, Bartram leased the Arcade City Hall for the evening of November 6, 1996, and it conducted a hearing to discuss the proposed landfill. The transcript of that 20-minute. hearing discloses that Pete Denicke, the president of Bar-tram, announced, “I will now call the advertised public hearing to order.” (Emphasis supplied.) Denicke informed the attendees that “[i]n accordance with Section 12-8-24 Subsection (d) of the Georgia Comprehensive Solid Waste Management Act, as amended, notice of this public hearing was advertised in The Jackson Herald. . . .”

On November 8, 1996, Jerald Cohn, chairman of Bartram, directed a letter to the manager of the EPD’s Commercial & Industrial Solid Waste Program. Bartram’s letter to the EPD stated: “[ejnclosed is the certified transcript of the public hearing referred to in O.C.G.A. § 12-8-24 (d) held on Wednesday, November 6, 1996, at the Arcade City Hall. The proposed site was posted with a sign and the hearing was advertised and authorized by the City of Arcade. (See enclosed.) However, in a recent ruling by Judge Robert W. Adamson of the Piedmont Judicial Circuit, the Arcade City Council was prevented from being present at this hearing. Therefore, Bar-tram Environmental conducted the public hearing. We believe that this process meets the requirements of the Georgia Comprehensive Solid Waste Management Act of 1990 as amended. If you have any [206]*206questions, please do not hesitate to contact me.”2

On December 3, 1996, Harold F. Reheis, the Director, EPD, Georgia Department of Natural Resources, notified Bartram that on advice of counsel the EPD would refrain from further processing of Bartram’s application until resolution of the Intervenors’ suit. City of Arcade v. Emmons, 228 Ga. App. 879 (494 SE2d 186) (1997).

In late November, the trial court heard evidence to determine whether the circumstances surrounding the City Hall meeting conducted by Bartram constituted contempt of its order enjoining the City. The court made a specific finding that “there was an effort by Bartram to mislead the EPD by the representations regarding the meeting set forth [in the November 8 letter and its attachments from Bartram to the EPD]. The purpose of that misrepresentation was to procure final action on the subject permit by EPD.” The trial court directed the City to purge itself of contempt by sending an official letter to the Director of the EPD bearing the signatures of the mayor and councilpersons, advising the Director that Bartram’s November 8 letter misrepresented the advertising and authorization by the City and that “anything purporting to be a hearing on November 6, 1996, was not, in fact, a hearing authorized or otherwise allowed by the City.” It is undisputed that Bartram did not inform the EPD of this order. The City appealed, and over a year later, this Court invalidated the order on jurisdictional grounds. Emmons, 228 Ga. App. at 886 (4).

To comply with the court’s directive, on December 6, 1996, the City sent a letter to the Director which stated that Bartram’s November 8 letter to the EPD misrepresented both the advertising and authorization by the City. On January 8, 1997, counsel for Intervenors wrote the Director to inform him about the underlying facts related to the November 6, 1996 hearing. In late January, the Intervenors and certain local legislators met at the State Capitol with the Director to express their concerns about alleged misrepresentations related to the proposed landfill.

After consulting with the Attorney General, the Director informed Bartram in a February 11, 1997 letter that under the authority granted to him under OCGA § 12-8-23.1 (a) (3) (B) (ii), he was refusing to issue the permit as a result of Bartram’s attempt to obtain the permit by misrepresentation or concealment. Bartram appealed the Director’s decision to an ALJ under OCGA § 12-2-2 (c) (2).

[207]*207The ALJ conducted an evidentiary hearing and determined that the Director’s action was justified. The ALJ found that Bartram attempted to show compliance with OCGA § 12-8-24 (d) by insinuating to the EPD that the public hearing as required by that law had occurred, when, in fact, the governing authority, the City, had been enjoined from holding that hearing. Further, Bartram’s letter of November 8 was found to contain material inaccuracies: (1) that on November 6, the “public hearing referred to in O.C.G.A. § 12-8-24 (d)” had taken place; and (2) that the November 6 hearing was “the hearing [that] was advertised and authorized by the City of Arcade.” In affirming the Director’s decision, the ALJ determined that “through a combination of misrepresentations and concealment, [Bartram] attempted to obtain a permit from the Director.

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Bluebook (online)
509 S.E.2d 114, 235 Ga. App. 204, 98 Fulton County D. Rep. 4212, 1998 Ga. App. LEXIS 1473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartram-environmental-inc-v-reheis-gactapp-1998.