Appellant contended that it was a "public utility" under OCGA 48-1-2 and, as such, was required under OCGA 48-5-511 to make an annual tax return of its Georgia property to the Georgia Revenue Commissioner rather than to the Chatham County tax authorities. Appellant filed a complaint for a declaratory judgment and for writ of mandamus in superior court, seeking to have the trial court recognize appellant as a "public utility" and to order appellee to accept appellant's annual ad valorem property tax return. The trial court granted appellee's motion to dismiss the complaint based on appellant's failure to state a claim upon which relief could be granted because the doctrine of sovereign immunity was applicable to the claims. The court reversed and held that it need not address whether sovereign immunity would act as a bar to appellant's declaratory action, as it was clear that, if the declaratory action were barred by sovereign immunity, appellant's mandamus action would still remain viable. View "Souther LNG, Inc. v. MacGinnitie" on Justia Law
Posted in: Energy, Oil & Gas Law, Georgia Supreme Court, Government & Administrative Law, Tax Law, Utilities Law
Appellant owned and operated the Sewell Creek Energy Facility, a "peaking" power plant that began operating in 2000. Appellees, neighbors of the power plant, filed suit in 2007 alleging that the power plant constituted a nuisance. At issue was whether appellants were entitled to summary judgment where the power plant was either a permanent nuisance or continuing nuisance that could be abated. The court found that the power plant's exhaust silencing system, which was an integral part of the gas turbines that generated power, was an enduring feature of the power plant's plan of construction and the noise emanating from the exhaust stacks resulted from the essential method of the plant's operation. Consequently, the exhaust stacks were a permanent nuisance. Thus, the court held that the Court of Appeals erred when it omitted any consideration of whether the nuisance resulted from an enduring feature of the power plant's plan of construction or an essential method of its operation and grappled only with whether the nuisance could be abated at "slight expense." The court held that appellees' action was barred under the statute of limitation for permanent nuisances because they did not file their lawsuit until almost seven years after the plant became operational, unless some new harm that was not previously observable occurred within the four years preceding the filing of their cause of action. The court also held that, to the extent the trial court found that a factual issue remained concerning whether there was an "adverse change in the nature" of the noises and vibrations coming from the plant after the start of the 2004 operating season, the denial of summary judgment was appropriate. By contrast, to the extent that the trial court found that a factual issue remained concerning whether there was an "adverse change in the... extent and amount" of the noises and vibrations after the 2004 operating season, the denial of summary judgment was inappropriate. Accordingly, the court affirmed in part and reversed in part.
Posted in: Energy, Oil & Gas Law, Georgia Supreme Court, Injury Law, Real Estate & Property Law, Utilities Law, Zoning, Planning & Land Use