Attorney for Franklin County Responds to Calmat/Vulcan Lawsuit

The attorney for Franklin County, Bubba Samuels, has filed for a dismissal of a lawsuit brought by Vulcan Materials subsidiary Calmat.

Vulcan purchased approximately 300 acres on Highway 59 in Lavonia, the old Millken plant property back in June 2021, which is now zoned Light Industrial.

In the suit, Calmat claims Vulcan has “suffered a special injury not common to all other property owners since it desires to use the Property for Surface mining and quarrying and resource extraction.”

Their argument is also based on the County Commission’s approval of the setback for heavy industry from 4,000ft to 3,000ft.  Vulcan’s planned setback on the highway 59 property was around 200-300 ft.

However, between June 2021 and May 2022, when the old 2005 Zoning Ordinance was still in effect and prior to the heavy industry moratorium, Vulcan never filed for rezoning or conditional use permits with Franklin County Planning & Zoning.

In May of 2022, the Board of Commissioners voted to impose a moratorium on any heavy industry rezoning requests pending the adoption of the new zoning map and new Unified Development Code.

In early August, the Board voted to adopt the Unified Development Code and changed the setback for heavy industrial from 4,000 ft to 2,000 ft.

Before the vote at the August meeting, the attorney for Vulcan, David Ellison told the Board even a 2,000 ft setback would bar the company from putting in the planned rock quarry.

The moratorium on heavy industrial zoning requests ended when the new zoning map and UDC became effective in late September.

In late August, Calmat, a subsidiary of Vulcan Materials, filed the lawsuit and named Commissioners Eddie Wester and Robert Franklin and Interim County Commission Chair Kyle Foster.

In the County’s response filed Friday, attorney Bubba Samuels asked for a dismissal of the Calmat suit.

Samuels stated Vulcan/Calmat’s complaint should be dismissed in its entirety because they had plenty of time, prior to the Board’s vote in August to  “exhaust its adequate and available remedies prior to initiating this action (lawsuit) by submitting any applications to Franklin County for consideration and approval of Vulcan’s proposed development of the property.”  Therefore, Samuels asserted Vulcan’s lawsuit is moot.

Samuels stated Vulcan filed its lawsuit against Franklin County based on the old 2005 Zoning Regulations which were repealed and replaced with the new UDC and zoning map adopted at the September, 2022 Commission meeting.

“When an ordinance is repealed and replaced through the adoption of a new ordinance, (legal) claims regarding the prior ordinance are moot,” Samuels said in the response.

Further, he said any claims Vulcan/Calmat now attempts to bring to challenge the new UDC are time-barred.

Additionally, Samuels said in his response that Calmat/Vulcan did not exhaust all local challenges to the setback ruling by “seeking permission from the local government through established channels“ through variance or conditional use requests or rezoning requests before filing their lawsuit.”

Samuels concluded by stating, “All other claims and demands are without merit and there are no set of facts upon which this Court could fashion Plaintiff relief. The County’s motion should be granted, dismissing Plaintiff’s Complaint.”

The full response can be read here: Defendants’ MTD and Brief