Around our house, we have a saying: “Stay in your Lane”. We use it with one and other as a gentle reminder that we each have our own strengths and weaknesses and roles within our family structure.
The State of Georgia made provision for local governments to handle certain issues, and the State to handle others. This is called “Home Rule”, and it specifically prohibits municipalities from creating local regulations which already have provisions. OCGA 36-35-3 is the State’s way of telling local governments to “stay in their lane”.
Home Rule also puts a burden on local governments to have a formal variance procedure (think of building or other land use permitting) on any local ordinance, so that citizens can have Due Process when a provision comes in conflict with their rights.
Georgia’s Water Well Standards Act already has provisions for all types of well construction- addressing both public health and environmental concerns, and OCGA 12-5-91 “require[s] that the water resources of the state be put to use to the fullest extent to which they are capable.” This is a mandate.
We have experienced situations in more than one county where our customers were denied a water well because of arbitrary setback requirements or some other municipal code. These counties have created a whole set of additional rules governing well construction that are far in excess of Georgia’s very comprehensive Water Well Standards Act.
If there were some variance procedure or method of formal appeal on these issues it may be seen as fair, but whenever they deny a citizen a well construction permit on any of their arbitrary grounds their only answer to a request for such a hearing is that there is “no such procedure” within their system.
In Fulton County, 50-foot building setbacks make it difficult for some homeowners to drill a well, even though their stated purpose is to only use their wells to sprinkle their yards- which use is actually taking pressure off the municipal water system, it is recharging the water table, and it is absolutely in accordance with and exemplifies the spirit of the mandate in OCGA 12-5-91.
In Towns County, they won’t let anyone with less than 2 acres drill a well, regardless of setback requirements.
These are just two examples where local governments seem to have overstepped their authority, and the residents are paying the price- in expensive irrigation water, in infrastructure wear and tear, and- in one case- actually moving to a different county to gain the property rights already afforded to them by the State government!
We don’t believe any municipality has a right to deny any well construction that is compliant with the State’s guidelines, but hundreds of homeowners and businesses who would like to put their water resources to use are being denied the opportunity by a system of bureaucratic hoops, putting undue stress on a troubled infrastructure. We don’t mind paying a permitting fee or having our wells inspected to be sure they are State-compliant, but we are not happy to leave our clients stuck on City or County water (or with no water) just because of an arbitrary rule.
Tom Rawlings, of McMillian and Rawlings, LLP agrees. It is his work in a 2013 case against the City of Sandersville, GA that first drew our attention to this important issue. In that instance, the City required a permit before drilling, and then stopped issuing permits. In the Middle Circuit Superior Court Decision, the ordinance was deemed unconstitutional on its face, and the Judge ordered the City to pay the Complainants’ legal fees.
If you or someone you know has been denied a well construction permit based upon local code, we are here to help. We are working hard to make sure your rights are protected, and have already discovered what seems to be a simple out-of-court solution in certain specific instances. Each case has its own nuances, and we are happy to offer a free consultation (from the perspective of a well driller, NOT a lawyer) to see what would be best for your particular situation.
Use our contact us form and put “permitting problem” in the notes and we will do what we can to help!Add to favorites