Attorneys debate ‘inverse condemnation’ at public meeting

Commissioner denies Adairsville mining request

By JAMES SWIFT
Posted 12/31/69

Bartow County Commissioner Steve Taylor voted to reject a requested rezoning and future land use map reclassification for a proposed Adairsville mining operation at a public meeting held Wednesday …

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Attorneys debate ‘inverse condemnation’ at public meeting

Commissioner denies Adairsville mining request

Posted
Bartow County Commissioner Steve Taylor voted to reject a requested rezoning and future land use map reclassification for a proposed Adairsville mining operation at a public meeting held Wednesday morning.

The nay vote from the County’s lone commissioner came in the wake of the Bartow County Planning Commission voting unanimously to recommend denial of the requests at a public meeting Monday evening

“After probably a couple of hundred emails and at least that many phone calls — and the zoning commission’s unanimous denial of this — I agree, this petition is denied,” Taylor said. 

Applicant Yellowstone, LLC sought the rezoning of about 466 acres along Rock Fence Road from A-1 agricultural to M-1 mining, along with a future land use map amendment changing the property from agricultural/forestry to mining.

“I will note for the record that this property and everything around it, its future land use is agriculture/forestry,” said Bartow County Zoning Administrator Richard Osborne. “There’s been opposition comments from the City of Adairsville, Barnsley Resort, the Georgia Hotel and Lodging Association, the Coosa River Basin Initiative, the National Golf Course Owners Association, Vista Metals, the Adairsville Historic Preservation Commission, the Adairsville Downtown Development Authority, the Adairsville Development Authority and numerous citizen opposition comments.”

Local attorney William Neel, Jr. represented the applicant at Wednesday morning’s hearing.

Neel said timber company SpringBank, LLC holds ownership rights to the entirety of the 466-acre property except for the mineral rights, which belong to Yellowstone, LLC owner Galen McDaniel.

“Those two different ownership interests kind of put us into a funny situation when it comes to zoning,” Neel said. “When you deny that mineral right owner the right to use that property, he has no right, he has nothing left.”

Denying the mining request, Neel argued, constitutes “an inverse condemnation that requires payment for the loss of the property right.” 

He also said he believes the scores of residents who showed up to oppose the rezoning and land use modification requests were “concerned about things that we know aren’t going to happen anytime soon,” adding that McDaniel has no plans to use the property for an inert landfill — which, under Bartow County’s zoning code, is a permitted use under the M-1 mining zoning classification. 

At this point, Neel said the applicant did not know what minerals — if any — may potentially lay underneath the property.

The tract, he said, “is a couple of miles, at least” from Lewis Spring and from the Barnsley Resort grounds. “If you can’t put a mining site at this remote area,” he asked Taylor, “where in the world can you put it in this county?”

When discussing concerns about the potential impacts of a mining operation on Adairsville’s water supply, Neel brought up the Vulcan Materials Corp. quarry off Mitchell Road.

“I haven’t heard anybody talk about how the water is already being contaminated or will be contaminated further by a Vulcan site across the highway from the main part of the city,” he said. “They don’t talk about that.”

Neel also accused City of Adairsville officials of “incorrectly” displaying water recharge areas on topographic maps of the proposed mining site.

“With the mountain buffer and the distance of the recharge area and another two miles away from the spring, I would just submit to the commissioner that that water recharge argument doesn’t really have any force,” he said. 

Ultimately, Neel described the applicant’s requests to be “a courtesy to the people” of Adairsville.

“He sees this county growing and growing, and pretty soon, those timber ownerships outside of this area are going to be sold for housing developments and who knows what else,” he said. “And when that happens we want the public and the people that come in to develop those areas to know that this is a mining area that Mr. McDaniel owns.”

Attorney Brandon Bowen represented the City of Adairsville at Wednesday’s meeting.

“As far as the water situation, we have submitted reports that showed you why the City of Adairsville is so concerned,” he said, referencing worries about potential well and spring contamination from sinkholes. 

Bowen disputed Neel’s argument that the denial of the rezoning and land use map requests constitute a “taking” by the local government.

“Every property in the county has mineral rights attached to it,” he said to Taylor. “The Georgia Constitution specifically provides the right to plan and the right to zone is in the local government … and because of that, you have the right and the legal authority to impose reasonable zoning conditions.”

Such a taking, Bowen contended, would only occur if there was a “substantial detriment to the owner of the property” that isn’t balanced out by a significant benefit to the public.

“In this case, there is no substantial detriment,” Bowen said. “Mr. McDaniel apparently purchased these mineral rights for a very small amount of money … he purchased it, I think it shows, [for] $6,000.”

Furthermore, Bowen said the property was not zoned for mining at the time the applicant purchased the rights. 

“It is worth no less today than it was on the day that he purchased it,” he said. “There can’t be a substantial detriment to a property owner if there’s no known mineral rights on the property, no known value — that was kind of a necessary thing they admitted they don’t have.”

Bowen also said City officials had concerns about the impact of a proposed mining operation on nearby traffic.

“It doesn’t just affect Rock Fence Road,” he said. “It also [affects] the routes to it, which are most likely going to be through Adairsville.”

Neel briefly responded at the end of the meeting. He said the applicant has already consented to the County’s regulations pertaining to “built-in” buffers.

“Which, in fact, make his 466-acre property only available for use under these zoning regulations, only for a 50-acre spot a long way down south of Rock Fence Road," he said.

Bowen, however, noted that Taylor’s ruling may not constitute a “forever decision” on the matter.

“Nothing stops Mr. McDaniel from coming back in a year or two with actual plans showing what the actual mineral rights, or minerals, are on the property,” he said, “and what actual processes he might want to use to get to them.”