Oconee County Magistrate Court Judge Delayed Decision On Ordinance Violation Issued To Oconee Waste Transport

***Noise Ordinance Cited***

Following and hour-long trial on Friday, Oconee County Magistrate Court Judge Sam Barth postponed his decision on whether Oconee Waste Transport violated the county’s noise ordinance while operating prior to 7 a.m. behind at least one business along Epps Bridge Parkway.

Clyde Edwin Pittman, an Athens plastic surgeon who lives at 1591 Tanglebrook Drive just off Epps Bridge Parkway, testified that he has been awakened in his home going back five years by haulers picking up trash from dumpsters at businesses on Epps Bridge Parkway.

Pittman also testified that he had driven to the IHOP on that road and witnessed on at least one occasion that an OWT truck was causing the noise.

Paul Smith, retired Oconee County Code Enforcement officer, testified that he had tried to get OWT to stop dumping, shaking and dropping dumpsters between the hours of 11 p.m. and 7 a.m., consistent with the county’s Noise Ordinance, and that he wrote a citation in January of 2017 as a “last resort.”

OWT is owned by Matt Elder, a member of the Oconee County Industrial Development Authority.

In 2012, then Magistrate Court Judge Eric Norris found Elder in violation of a county zoning ordinance for operating his Oconee Waste Transport business on SR 15 south of Watkinsville before 6 a.m.

Barth said on Friday he will issue a ruling on the charge of violation of the county’s Noise Ordinance within a week.

Citation And Plea

Code Enforcement Officer Smith issued a citation to OWT on Jan. 23, 2017, saying the violation of the county Noise Ordinance occurred between Dec. 29, 2016, and Jan. 20, 2017, at a “business located Epps Bridge Parkway area.”

Smith wrote that OWT was “creating loud noise prior to 7:00 a.m.” in violation of the county’s ordinance.

Smith also commented: “Repeated violations after advised to not violate Noise Regulations.”

Section 26-32 of the County Code of Ordinances states that “No person shall create or cause to be created an excessively loud and disturbing noise within the unincorporated area of the county between the hours of 11:00 p.m. and 7:00 a.m.”

Elder pleaded not guilty to the ordinance violation on May 5, 2017.

Pittman Testimony

Tanglebrook subdivision resident Pittman testified that he complained to the county because “We were having an epidemic of dumpsters being dumped between 4 and 5 in the morning and making a lot of noise.”

Pittman Listens To Question From Prosecutor Slider

Pittman said his bedroom faces Epps Bridge Parkway and the noise was loud enough that it was waking his wife and him up every morning.

Pitman said on a number of occasions he got up, got dressed and drove to the site of the sound to witness the emptying of the dumpters.

“The fork lift picks it up,” he said. “They get it up to where the trash goes into the truck. And then they shake it back and forth trying to get the trash out. And then they drop it on the concrete.”

This lasts 10 to 12 seconds, Pittman said, but there are multiple dumpsters on the site, so sometimes the noise lasts 7 to 10 minutes.

Pittman testified that he observed OWT emptying trash behind IHOP, in the period between Dec. 29, 2016, and Jan. 20, 2017, and placed a call to the county, leading to the citation. IHOP is on Epps Bridge Parkway but has an address of 1061 Parkway Place.

Smith Testimony

Code Enforcement Officer Smith, who retired in October after 14 years of service to the county, said the problem of haulers making noise while picking up trash in commercial areas near residential ones has been a long-standing one in the county.

Smith During Testimony

Smith testified that he did not directly observe OWT operating in the commercial area on Epps Bridge Parkway during the period covered by the citation but relied on the information provided him by Pittman.

Smith said he issued the citation to OWT “Because we had communicated with them and we didn’t seem to be making any progress.”

“In other words,” Smith testified, “if you go down there, and you make a site visit to their location and ask the lady that is in charge if she can make sure that this gets told to the drivers, ‘Not to do this in the mornings before 7 o’clock at that location.’ And then two weeks later you get the same thing. Then obviously somebody’s not paying you any attention.”

Smith added that issuing a citation was not done lightly.

“At least when I worked for Oconee County,” he testified, “writing a citation was a last resort. And you wanted to do everything you possibly could do to keep from writing a citation. See if you could get what they call voluntary compliance.”

OWT Defense Summary

Jeffrey Rothman, an Athens attorney representing OWT, did not call any witnesses, though he did cross examine both Pittman and Smith.

In his closing remarks, he argued that “There is zero evidence” that a violation by Oconee Waste Transport occurred during the period listed in the citation.

Rothman also argued that the exemption in the county Noise Ordinance for “noises arising from normal and customary transportation and agricultural activities” applied to the noise produced by waste hauling.

“Waste hauling is a transportation activity clearly,” he said. “They are transporting waste from one location to another. They do that by stopping at the place, picking it up, and moving it.”

Jason Slider, an Athens attorney serving as prosecutor for the county, argued that the picking up of trash is not a transportation activity. “It’s not transporting the waste,” he said. “It is getting the waste.”

Judge Barth said he would take the case under advisement, review the statutes, and reach a decision in the next 7 days.

2012 Court Case

The Oconee County Board of Commissioners voted in 2010 to set aside the Future Development Map it approved in March of 2008 and the rezone 6.2 acres at 1750 Greensboro Highway just south of Watkinsville so Elder could move his Oconee Waste Transport business from downtown Watkinsville.

A number of the citizens from a small subdivision off Green Ferry Road and near the Elder property spoke against the rezone request, saying the rezone and business was not compatible with the rural and residential area.

To protect those citizens, the Board of Commissioners restricted the hours of operation from 6 a.m. and until 6:30 p.m. on weekdays and from 9 a.m. to 4 p.m. on Saturdays.

In the trial in 2012, Elder admitted operating his trucks on his lot before the allowed opening time. Elder’s attorney contended that since Oconee Waste Transport had not opened the business office, it was not in violation of the zoning restriction.

After Elder was found guilty, he indicated he would appeal, and the county asked Magistrate Court Judge Norris to vacate his ruling to save money that would have been spent on the appeal and because, it contended, citizens had stopped complaining about the noise.

Open Records Request

I filed an open records request on Nov. 9, 2017, to gain access to the investigative file related to the Jan. 23, 2017, Noise Ordinance citation issued to Oconee Waste Transport.

County Clerk Kathy Hayes sent me an email message on Nov. 14 saying that “The documents requested in the Open Records Request below are records of a pending investigation/litigation and cannot be released at this time.”

Elder, whose full name is Courtney M. Elder Jr., is part of an old Oconee County family.

The Oconee County Board of Commissioners appointed him to the Industrial Development Authority, the most important citizen committee in the county, in 2010, just after the rezone decision.

Terms of appointment are for two years, and he has been reappointed every two years since.

Elder’s current term expires Dec. 31, 2018.

Video

The video of the trial on Friday is below. The audio system in the courtroom was not operating, but I was able to amplify the voices in editing.

Smith spoke very softly, and, at times, his voice remains difficult to hear.

Pittman’s testimony begins at 8:40 in the video.

Smith’s testimony begins at 26:30.

Rothman made his closing remarks starting at 49:06.

Slider’s closing comments start at 57:03.

OCO: Magistrate Court 1 12 18 from Lee Becker on Vimeo.