Judge rules against Town of Repton

Published 4:44 pm Tuesday, March 8, 2011

A judge ruled against the Town of Repton after a court hearing Tuesday, allowing a public hearing on a proposed Conecuh County landfill to go on as planned Thursday.
The ruling denied a request for an injunction and restraining order, citing that there is not a controversy before the court.
“At this point, there is no bona fide justiciable controversy in that the complainant alleges only anticipated controversies for which a declaratory action cannot and will not lie,” the ruling from Judge Burt Smithart states.
The town had sued the Conecuh County Commission and the Conecuh Woods developers to try to halt the application process for the landfill.
But attorneys for the defendants argued that the landfill could have been approved anyway if the application process were halted.
The 90-day timeline for action and the application of Gov. Robert Bentley’s moratorium on landfills were at the heart of Tuesday’s court hearing as the Town of Repton sought an injuction against the proposed 5,100-acre landfill.
Smithart, a circuit judge from Barbour County, heard arguments in an Evergreen courtroom, having been appointed after local judges recused themselves.
Conecuh County’s solid waste management plan calls for a public hearing before the commission can take a vote on a proposed landfill. If a judge halts the public hearing and the commission takes no action, the landfill could be approved anyway, based on a current state law that allows such an approval, attorneys said.
“With the statute we’re operating under, if no action is taken, then it is approved,” said Conecuh County Commission attorney Richard Nix. “The commission cannot take action unless there is a public hearing, so the application would be approved.”
The public hearing has been set for 9 a.m. Thursday at Reid State Technical College in Evergreen.
Greg Albritton, an attorney representing the Town of Repton, said an executive order signed by Bentley late last month should help halt the application process. The executive order calls for a moratorium on new large landfills until the state develops new regulations for them.
“Repton is seeking to protect its citizens and its very existence,” Albritton said. “It’s not the public hearing we object to. It’s the process. … If the court simply grants an injuction to the public hearing, I don’t think an approval can be made.”
But attorneys for the defendants — the Conecuh County Commission and the Conecuh Woods developers — argued that the Town of Repton signed off the county’s solid waste management plan before it was adopted in 1994. The plan calls for a decision to be made within 90 days of the application. If no action is taken, the application is automatically approved.
“We are on the 46th day since the filing of the application. What would happen is that if we are successful on appeal, Conecuh County would have to give re-notice of the public hearing,” Conecuh Woods attorney Al Agricola said. “That would all be consumed with whatever 90 days is left.”
The attorneys also argued that the governor’s executive order does not affect the local application and approvals process, and that the Town of Repton does not have the authority to enforce the governor’s executive order.
“The nuts and bolts of their case is their contention that the executive order prevents the commission from going forth with its statutorily mandated process,” Agricola said. “There is no language in the executive order that precludes the Conecuh County Commission from proceeding with the landfill application process.”
An affidavit from Repton Mayor Terri Carter that was filed with the lawsuit states that the town would suffer “irreparable harm” from the landfill.
“There is no irreparable harm except the harm which would be suffered by Conecuh Woods,” Agricola said. “What is being stifled its Conecuh Woods’ reasons why this would be beneficial to the county.”
Attorneys for Escambia County were also present at the court hearing Tuesday, seeking to intervene on behalf of the county for the Town of Repton.
“The citizens of Escambia County will be affected by this dump site,” attorney Todd Stearns said.
The Escambia County Commission, along with several other surrounding counties and municipalities, has passed a resolution opposing the landfill.