Judge Smithart rules against the Conecuh Landfill
August 28, 2013
By JOE THOMAS
Re-printed with permission from the Tri-States Ledger
Citing possible illegal activity and not knowing the law, Circuit Judge Burt Smithart ruled all action taken by the Conecuh County Commission and Alabama Tombigbee Regional Commission to approve a mega landfill in Conecuh County null and void, thus eliminating the landfill threat for the time being.
Repton Mayor Terri Carter said she was excited, but noted Conecuh Woods, who is proposing the landfill, has six weeks to appeal the judge’s decision.
Judge Smithart filed his response Tuesday afternoon, specifically stating:
– The April 18, 2011 host government approval by the Conecuh County Commission of the application for approval of proposed Conecuh Woods Solid Waste Management Facility is herby set aside and declared null and void.
– The municipal solid waste landfill development and host fee agreement executed by Conecuh Woods, LLC., and executed by Wendell Byrd, who at the time was chair of the Conecuh County Commission, on April 18, 2011, is hereby set aside and declared null and void.
– The July 22, 2011 statement of consistency executed by the executive director of the Alabama Tombigee Regional Commission is hereby set aside and declared null and void.
The Conecuh County Commission voted 3-2 on April 18, 2011 to approve the application of Conecuh Woods to develop a mega landfill near the town of Repton. At that meeting, Commission Chairman Byrd, along with Commissioners Gerald Dean and Leonard Millender voted yes. Commissioners D.K. Bodiford and Hugh Barrow voted no. Today, Millender is the only one remaining on the commission.
The town of Repton filed suit to stop the landfill and was later joined by municipalities south of the proposed site, such as municipalities in Escambia County, Ala., and Escambia County, Fla., due to being down stream of the proposed facility.
Repton Mayor Terri Carter said she was happy but not surprised with Judge Smithart’s ruling, saying she felt he would do the right thing.
“The best part is he said they acted unlawfully,” Mayor Carter said Tuesday night. “We feel great, but it’s bittersweet because we lost one of our core people and I wish she could be here to share this.”
June Serravezza, 68, died Friday, Aug. 2 at her home in Repton.
Mayor Carter said June was a core member of the Citizens for a Clean Southwest Alabama (CCSA), which was formed about seven years ago to fight the landfill project.
“The dump brought us together,” Carter said. “We’ve been best friends for the past seven years.”
Carter said she feels justice has been served in the end, but said there were many people who stepped up and helped fight the landfill.
“The town of Repton and me may be listed as plaintiffs, but we had many, many more plaintiffs who helped fight this landfill,” Carter said. “I’m thankful to God for all the miracles.”
When asked if she thought Conecuh Woods would appeal Judge Smithart’s decision to the Alabama Supreme Court, Carter wasn’t sure.
“They’ve been down that road twice and lost, so I don’t think they will appeal,” she said. “However, they do weird stuff all the time.”
Johnny Andrews, who was the original chairman of the CCSA, said he felt the ruling by Judge Smithart was ‘just and correct’ stating he and others felt the same way the judge felt in that the previous commission acted ‘arbitrarily and capriciously’ in approving the landfill contact.
“They (the county commission) did not represent their constituents, the represented themselves,” Andrews said. “That’s wrong and it was all done illegally.”
Andrews stepped down as chairman of the CCSA after being elected to the county commission in November.
State Rep. Alan Baker said he was elated with the news on the judge’s ruling saying it was a huge victory for Southwest Alabama.
“All the entities in opposition knew of this un-needed and un-wanted landfill,” Baker said.
Baker was successful in getting a bill passed in the Alabama Legislature to put a two-year moratorium on permitting new landfills in the state and then having that moratorium extended for a third year.
He said studies were ordered to look into the permitting process and that study will help design legislation for the next session.
The Conecuh County Commission is also expected to vote Monday on revisions to its own solid waste disposal plan which would make it extremely difficult for someone to build a mega landfill to handle waste from across the country from locating within its county.
Baker also said one of the provisions he supports is mandating any future landfills in the state to provide the resources for recycling.
In its original suit, the town of Repton claimed the county commission arbitrarily and capriciously, “in violation of applicable law and the commission’s own Solid Waste Management Plan, approved Conecuh Woods’ application for a landfill in Conecuh County.”
The suit also alleged the Alabama Tombigbee Regional Commission did the same thing.
The judge ruled there was ‘undisputed evidence’ that there was not a need in the region for any additional disposal capacity.
Conecuh Woods’ attorneys contended that the circuit court had no jurisdiction in the case, Judge Smithart ruled otherwise.
“Neither the commission nor the ATRC filed anything in opposition to the motions for summary judgment and at a hearing on the motions, the commission and ATRC stated through their respective counsel that they did not oppose the motions for summary judgment,” Judge Smithart wrote.
In his ruling, the judge stated that the town of Repton and other intervenors into the case had proven that they had suffered and will continue to suffer injuries and threat of injuries due to the landfill.
He noted the commission failed to make the host fee agreement available for inspection by the public before a vote and that Chairman Byrd executed the host fee agreement without proper authorization.
The Judge also ruled that Mayor Carter presented undisputed evidence that the traffic, litter, noise and odor, along with public health and safety issues would likely result if the landfill was opened.
The Judge also ruled lawyers for Conecuh Woods simply didn’t know the law.
“Conecuh Woods’ argument that the plaintiffs’ and intervenors were required to challenge local and regional decisions at a hearing before ADEM, and then to appeal any adverse decision by ADEM to the Alabama Environmental Commission is simply wrong,” the judge wrote.
The judge also agreed with the plaintiffs that approval of the landfill by the commission was obtained illegally.
“The plaintiffs and intervenors have conclusively proved that host government approval by the commission was arbitrary and capricious and was unlawfully obtained,” the judge wrote.
He noted the plan approved by the commission was in violation of the commission’s own solid waste plan, especially noting Conecuh Woods’ own application shows “without dispute that buffer zones and landfill cells encroach into wetland areas” in direct violation of the county’s plan.
The judge also ruled that the commission did not give proper public notice to allow residents to voice their opinions one way or another on the proposed landfill.
He further states the county commission never voted to approve the agreement or approve a resolution authorizing Byrd to execute the agreement with Conecuh Woods.
The judge also noted ATRC’s approval of the landfill application did not follow law, noting the agency “lacked the expertise and resources to do so” and noted the executive director of ATRC, John Clyde Riggs, “misapprehended the law”.