Dunn v. City of Stonecrest

368 Ga.App. 736

890 S.E.2d 781

DUNN et al. v. CITY OF STONECREST et al.

Metro Green Recycling Three, LLC v. City of Stonecrest et al.

A23A0655, A23A0656

Court of Appeals of Georgia.

July 13, 2023

Christopher Michael Carr, Margaret Kemmerly Eckrote, Robin Joy Leigh, Atlanta, Christopher Ryan Held, for Appellant in A23A0655.

Todd Orlando Pearson, Winston A. Denmark, Jonesboro, Paul Joseph Dzikowski, April Shepherd Lipscomb, Robert David Sherrier, for Appellee in A23A0655.

Joshua Barrett Belinfante, Matthew Parks Benson, Lawrenceville, Vincent Robert Russo Jr., Rachel Frazier Gage, Richard L. Robbins, Atlanta, Brian Tanner Easley, Lawrenceville, for Appellant in A23A0656.

Winston A. Denmark, Jonesboro, Paul Joseph Dzikowski, April Shepherd Lipscomb, Robert David Sherrier, for Appellee in A23A0656.

Mercier, Judge.

In these related appeals involving a solid waste handling permit, the Environmental Protection Division of the Georgia Department of Natural Resources ("EPD"), its director, Richard E. Dunn, and Metro Green Recycling Three, LLC ("Metro Green") appeal from the trial court's order granting summary judgment to the City of Stonecrest ("Stonecrest") and the Citizens for a Healthy and Safe Environment ("CHASE"). For reasons that follow, we reverse in part, vacate in part, and remand with direction.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. See Muscogee County Bd. of Tax Assessors v. Pace Indus. , 307 Ga. App. 532, 532, 705 S.E.2d 678 (2011).

So viewed, the record shows the following. In 2016, Stonecrest was established as a city within DeKalb County, Georgia, and a two-year transition period to full-governance commenced on May 8, 2017. ¹ During the transition period, DeKalb County "continue[d] to provide within the territorial limits of [Stonecrest] all government services and functions which [the county] provided in 2016[.]"

In early 2018, Metro Green commenced plans to build a construction recycling facility within Stonecrest, through which it would recycle used concrete and other construction materials. It contracted to purchase a large piece of property for the facility, applied for a business license, and requested assurance from the city that the property could be used for recycling operations. Stonecrest responded that Metro Green's "proposed recycling activities ... are allowed on the subject property." Thereafter, Metro Green acquired the land for the facility and continued the development process, which included applying for a solid waste handling permit from EPD.

Pursuant to the Georgia Comprehensive Solid Waste Management Act ("the Act"), OCGA § 12-8-20 et seq., an applicant seeking a solid waste handling permit must provide written verification to EPD that, among other things, "the proposed facility is consistent with the local, multijurisdictional, or regional solid waste management plan" ("SWMP"), and "the host jurisdiction and all jurisdictions generating solid waste destined for the applicants’ facility can demonstrate that they are part of an approved [SWMP.]" OCGA § 12-8-24 (g). To this end, Metro Green asked Stonecrest for a "consistency letter" to include with its permit application.

Stonecrest initially instructed Metro Green to request the letter from DeKalb County because, during the two-year transition period, Stonecrest was operating under the county's SWMP. The county, however, refused to write the letter, concluding from the information provided by Metro Green that the proposed facility was not consistent with its SWMP. Metro Green again requested a letter from Stonecrest. After consulting with legal counsel, Stonecrest's city manager wrote to EPD on October 31, 2018, stating:

The City of Stonecrest, Georgia was formed in 2017 and has not yet adopted a Comprehensive Solid Waste Management Plan. However, as the City is still in its initial transition period, the City continues to be part of the DeKalb County Solid Waste Management Plan. Additionally, the City intends to execute an Intergovernmental Agreement with the County to continue receiving Solid Waste services from the County and, therefore, continue to be part of the County Solid Waste Management Plan.

Based on the letters enclosed herewith dated April 24, 2018 and May 2, 2018, respectively, the Solid Waste Permit Application associated with Metro Green Recycling's proposed operation of a recycling Material Recovery Facility (MRF) located at 2450, 2534 and 2544 Miller Road and 5152 Snapfinger Woods Road in the City of Stonecrest, Georgia complies with local zoning and land use ordinances, as well as the DeKalb County Solid Waste Management Plan.

The EPD issued a solid waste handling permit to Metro Green approximately one year later, on October 1, 2019. In an accompanying letter, the EPD noted that although the permit was "now in effect," it was "subject to appeal for a period of thirty (30) days following its issuance, and [was] subject to modification or possible vacation if appealed." See OCGA § 12-2-2 (c) (2) (outlining administrative appeal procedures). No appeal was filed, construction of the facility commenced, and Stonecrest issued various building permits and a business license to Metro Green.

In August 2020, however, Stonecrest sued Metro Green to halt construction and operation of the facility. ² The city alleged that it had erroneously issued a consistency letter to EPD, that the facility did not comply with DeKalb County's SWMP, and that Metro Green's solid waste handling permit was "illegal." Stonecrest requested a temporary restraining order, preliminary and permanent injunctions, and a declaratory judgment that the permit was null and void. On September 21, 2020, Stonecrest amended its complaint to add the EPD and Director Dunn as defendants. With respect to these new defendants, Stonecrest sought a declaratory judgment that EPD was not authorized to rely on Stonecrest's consistency letter and requested mandamus relief to compel EPD, through Dunn, to revoke Metro Green's permit.

The following day, the Southern Environmental Law Center ("SELC"), acting on behalf of an initiative within CHASE known as "Stop Metro Green," wrote to Dunn, requesting that EPD revoke Metro Green's solid waste handling permit and address rising community concerns regarding the Metro Green facility. Dunn responded as follows:

As you may be aware, EPD and I were recently named as defendants in a complaint filed in the Superior Court of DeKalb County, Georgia ... (the "Litigation"). The legal issues raised in your September 22nd letter overlap with those raised in the Litigation, as does your request that EPD revoke the Permit. Accordingly, at this time EPD may not comment on these matters. Following the resolution of the Litigation, EPD will assess next steps in light of the decision of the Court.

CHASE subsequently moved to intervene in the litigation. The trial court granted the motion, and CHASE filed a complaint in intervention, alleging claims for declaratory relief against Metro Green, EPD, and Dunn; mandamus relief against Dunn; and interlocutory injunctive relief against Metro Green. ³

EPD and Dunn moved to dismiss the claims filed against them by Stonecrest and CHASE. Metro Green also moved to dismiss CHASE's claims. The trial court dismissed the CHASE claim for declaratory judgment against EPD, Dunn, and Metro Green, as well as Stonecrest's petition for mandamus against EPD and Dunn, but denied the remainder of the motions to dismiss. The various parties then filed cross-motions for summary judgment. Following a hearing, the trial court (1) granted summary judgment to Stonecrest on its claims for a permanent injunction against Metro Green and declaratory relief against Metro Green, EPD, and Dunn; (2) granted CHASE's request for mandamus relief against EPD and Dunn; (3) denied EPD and Dunn's motion for summary judgment as to CHASE's mandamus claim; (4) denied EPD and Dunn's motion for summary judgment as to Stonecrest's complaint; and (5) denied Metro Green's motion for summary judgment.

EPD and Dunn appeal the trial court's order in Case No. A23A0655. Metro Green appeals the same order in Case No. A23A0656. In Case No. A23A0655, we reverse in part, vacate in part, and remand the case with direction. In Case No. A23A0656, we reverse.

Case No. A23A0655

Through its summary judgment rulings, the trial court granted Stonecrest's request for declaratory relief with respect to EPD and Dunn, concluding that Dunn acted outside of his authority by awarding a solid waste handling permit to Metro Green and declaring the permit null and void. It also granted CHASE mandamus relief against EPD and Dunn. Specifically, the trial court found that Dunn grossly abused his discretion in failing to investigate and reach a decision on SELC's request that EPD revoke Metro Green's permit. EPD and Dunn challenge these findings on appeal, arguing, among other things, that Stonecrest failed to exhaust its administrative remedies and that CHASE has no clear legal right to mandamus relief. We agree.

1. Stonecrest's Request for Declaratory Relief. As a general rule, a party cannot obtain judicial review of an agency action unless that party first exhausts "all administrative remedies available within the agency." OCGA § 50-13-19 (a). "Long-standing Georgia law requires that a party aggrieved by a state agency's decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency's decision." Dept. of Community Health v. Ga. Soc. of Ambulatory Surgery Centers , 290 Ga. 628, 629, 724 S.E.2d 386 (2012) (citation and punctuation omitted). "Indeed, exhaustion is the usual...