McKee v. City of Geneva

627 S.E.2d 555, 280 Ga. 411
CourtSupreme Court of Georgia
DecidedMarch 13, 2006
DocketS05A2103
StatusPublished
Cited by7 cases

This text of 627 S.E.2d 555 (McKee v. City of Geneva) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKee v. City of Geneva, 627 S.E.2d 555, 280 Ga. 411 (Ga. 2006).

Opinions

Carley, Justice.

In 2001, N. Alan McKee sought to locate a solid waste handling facility in the City of Geneva (City). In accordance with OCGA § 12-8-24 (g), he requested written verification from the City that the proposed facility did not violate any zoning or land use ordinances and that it was consistent with all solid waste management plans (SWMP). No zoning or land use ordinance precluded McKee from proceeding. However, his request for verification was denied on the ground that the proposed facility did not comply with the City’s SWMP. McKee then filed a mandamus and declaratory judgment action seeking to compel the City to issue the verification. After conducting a hearing, the trial court denied the petition, from which order McKee appeals directly. See Mid-Ga. Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670, 671 (1) (594 SE2d 344) (2004).

1. OCGA § 12-8-24 (g) provides, in relevant part, that the verification must attest to the proposed facility’s compliance “with the [412]*412local, multijurisdictional, or regional [SWMP] developed in accordance with standards promulgated pursuant to this part subject to the provisions of Code Section 12-8-31.1 . . . .” The City approved a regional SWMP in 1993, and in 1995, it further approved a multi-jurisdictional Comprehensive Plan (CP). The trial court agreed with the City’s position, and held that McKee’s proposed facility must comply with the provisions of the CP, as well as those of the SWMP.

McKee contends that the 1995 CP is inapplicable, and urges that he is entitled to verification because he proposes to develop a solid waste handling facility that fully complies with the SWMP as the City approved it in 1993. The SWMP, as it was originally approved, does not expressly address solid waste handling facilities in substantive terms. Instead, it merely provides that one of its “GOALS” was

[t]o insure that proposed solid waste handling facilities are located in areas suitable for such developments in [the] Talbot County [CP] which will be developed in 1994-95 and not in areas of Talbot County identified as having environmental or other significant development or land limitations.

Thus, the SWMP, as it was approved in 1993, did not preclude locating a facility for the handling of solid waste in the City, because no unsuitable locations for such facilities were identified. Thereafter, the City never formally amended the SWMP so as to incorporate the CP.

The trial court’s conclusion that both the SWMP and CP are applicable is contrary to the controlling statutory provision. By its terms, OCGA § 12-8-24 (g) does not require compliance with both a SWMP and a CP. Instead, as previously noted, it provides that the proposed facility must comply only with a “[SWMP] developed in accordance with standards promulgated pursuant to this part subject to the provisions of Code Section 12-8-31.1 . . . .’’As it was approved by the City in 1993 and as it remained in succeeding years, the SWMP addressed solid waste handling facilities only in indefinite and vague terms of future “GOALS.”

The City contends that the principle of incorporation by reference is applicable, so that, after 1995, the CP became a part of the SWMP. As a general rule, the adoption of documents through the principle of incorporation by reference is valid where the document is sufficiently identified and is made a part of the public record. See Friedman v. Goodman, 219 Ga. 152, 159 (3) (b) (132 SE2d 60) (1963). Here, however, the CP was not even in existence when the City contends that it was incorporated by reference into the SWMP. The City does not cite any authority for the proposition that the principle of incorporation by reference can apply prospectively to a document [413]*413which has yet to be filed or made a public record because it is non-existent. To the contrary, that proposition appears to be inconsistent with the cases which recognize the principle. See generally Western & Atlantic R. v. Peterson, 168 Ga. 259, 265 (5) (147 SE 513) (1929) (ordinance identified the material being adopted only as “new ordinances as compiled by Attorney Fred Morris” and gave no indication where it was filed or that it was made a public record).

In any event, the principle of incorporation by reference applies only “[i]n the absence of statutory or charter provision to the contrary . . . .” Friedman v. Goodman, supra at 159 (3) (b). OCGA § 12-8-24 (g) unequivocally states that a SWMP must be “developed in accordance with standards promulgated pursuant to this part subject to the provisions of Code Section 12-8-31.1 . . . .” OCGA § 12-8-31.1 (a), in turn, requires that a city develop or be included in a “comprehensive [SWMP] not later than July 1,1993.” Under OCGA § 12-8-31.1 (b), the SWMP “shall, at a minimum, . . . identify those sites which are not suitable for solid waste handling facilities based on environmental and land use factors.” In accordance with this statutory scheme, a SWMP, as originally developed, was required to identify unsuitable sites, not express vague “GOALS” as to the identification of such sites in the future. Therefore, even assuming that incorporation by reference can ever apply prospectively, subsections (a) and (b) of OCGA § 12-8-31.1 are statutory provisions which mandate a comprehensive SWMP by 1993, and thereby preclude the City’s reliance on that principle to incorporate the 1995 CP into its SWMP. If the City intended for its comprehensive SWMP to include the substance of the CP, it should have amended the 1993 plan formally. It did not do so.

The dissent places great emphasis on the fact that the SWMP was reviewed and approved by the Georgia Department of Natural Resources and the Georgia Department of Community Affairs more than a decade ago. Although those agencies have administrative authority in the area of solid waste management, the courts have the ultimate authority to construe statutes and to determine whether there has been compliance therewith.

While the dissent urges that this Court must defer to the [administrative agencies’] construction of the statute [s] in question, we are not bound to blindly follow such an interpretation and decline to do so here. Administrative rulings are not binding on this Court, and will only be adopted when they conform to the meaning which the appellate court deems should properly be given. [Cit.] Thus, we are authorized to make an independent determination as to whether the interpretation of the administrative agency correctly [414]*414reflects the plain language of the statute and comports with the legislative intent. [Cit.]

Sawnee E.M.C. v. Ga. Pub. Svc. Comm., 273 Ga. 702, 706 (544 SE2d 158) (2001).

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McKee v. City of Geneva
627 S.E.2d 555 (Supreme Court of Georgia, 2006)

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Bluebook (online)
627 S.E.2d 555, 280 Ga. 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckee-v-city-of-geneva-ga-2006.