Recent Decisions In Zoning And Land Use Law

October 15, 2009

Presented by:

Frank E. Jenkins, III Esq.
JENKINS, OLSON & BOWEN, P.C.
fjenkins@joandb.com

15 South Public Square
Cartersville, Georgia 30120
(770) 387-1373

24 Drayton Street
Suite 1000
Savannah, Georgia 31401

RECENT DECISIONS IN ZONING AND LAND USE LAW

Frank E. Jenkins, III Esq.
JENKINS, OLSON & BOWEN, P.C.
Cartersville, Georgia
Savannah, Georgia

TABLE OF CONTENTSPage
Massey v. Butts County1
Camden County v. Lewis1
Hitch v. Vasarhelyi2
Fulton County v. Legacy Inv. Group, LLC4
Jacobs v. Chatham County4
C&H Development, LLC v. Franklin County4
Hardin v. Banks County4
Stendahl v. Cobb County6


1. Massey v. Butts County, 281 Ga. 244, 637 S.E.2d 385 (2006).

A citizen who uses equity to enforce or attack the issuance of a building permit must show “special damages” as a necessary prerequisite to prove standing.  He must demonstrate that his property will suffer special damage as a result of the decision issuing the building permit.  Damage which is merely common to all property owners similarly situated will not satisfy the minimum standing requirements to pursue such claim.

2.        Camden County v. Lewis, 298 Ga.App. 594, 680 S.E.2d 621 (2009).

Camden County issued a permit for construction of a retail seafood business on marshland property.  The owner filed a writ of mandamus against the county to require it to lift its stop-work order and permit completion of the building.  It was contended by the county that a building and planning employee issued the permit erroneously due to the structure’s non-compliance with certain electrical, plumbing, and zoning provisions of the building code.

The court held that the county could not be estopped from enforcing its ordinances.  The property owner cannot state a claim for detrimental reliance where a permit is erroneously issued.  For that reason, the property owner did not have a vested right to complete the construction of the building.  The stop-work order was upheld.

The property owner is also not entitled to relief under 42 USC § 1983 for deprivation of a “federal right by person acting under color of state law.”  To prove a claim under § 1983, a showing of deliberate and official policy is required as a moving force behind the constitutional tort.  It is based upon a policy adopted by the municipality or created by an official of such rank that it may be said that he or she is acting on behalf of the municipality.  A local government cannot be held liable under

§ 1983 on a respondeat superior theory.   Dismissal of a property owner’s § 1983 claim against the county is required without evidence that the issuance of the building permit was founded upon some deliberate official policy or custom.

3.        Hitch v. Vasarhelyi, 285 Ga. 627, 680 S.E.2d 411 (2009).

Property owners had standing to challenge the state’s issuance of a license for a neighboring property owner to build a dock through state-owned marshlands, even though the dock had not been built.  To establish standing, the property owner must show that in issuing a permit his interest in his property will suffer special damage or injury not common to all property owners similarly situated.  Here, similarly situated means those property owners within the general community who may suffer inconvenience and not those who will suffer damage that derogates from their reasonable use and enjoyment of the property.  Standing was approved since the property owner showed that the issuance of the license affected the value of his property, since it would impair his view and hamper his ability to build his own dock.

4.        Fulton County v. Legacy Inv. Group, LLC, 296 Ga.App. 822, 676 S.E.2d 388 (2009).

A Fulton County jury returned a verdict against Fulton County in favor of Legacy Investment Group for its claim of damages under 42 USC § 1983 for violation of its equal protection rights in the county’s enforcement of certain land use ordinances.  Legacy Investment, a development company, received a debarment notice which prevented it from receiving any land disturbance permits for a period of three years.  In this suit it claimed that Fulton County singled it out for more stringent treatment than against similarly situated individuals or entities.  Legacy sought damages under § 1983 and state law for violation of its guarantee of equal protection rights under the 14th Amendment.  Legacy also sought attorney’s fees under § 1988 and O.C.G.A. § 13-6-11.

Contrary to Fulton County’s contention that protection under the Equal Protection Clause is limited only to those instances in which property and liberty interests are implicated, the court countered that an equal protection claim is properly pled where state action treats similarly situated persons disparately.

Legacy was also required to prove that the county employee issuing the debarment notice had final policymaking authority to assert its claim under § 1983, since the county is not liable under §1983 or §1988 under a respondent superior theory.  Since the employee issuing the permit had final authority, and there was no right of appeal for the denial of Legacy’s permit applications, the evidence authorized the finding that the county employee had final policymaking authority to deny Legacy’s land disturbance permit applications for a period of three years.                
The court also held that Legacy was entitled to recover damages under O.C.G.A.
§ 13-6-11 even though no state law violation was found and only a federal law claim for damages was submitted to the jury.

5.        Jacobs v. Chatham County, 295 Ga.App. 74, 670 S.E.2d 885 (2008).

Chatham County was authorized to seek a permanent injunction against a homeowner enjoining him from violating property maintenance and health codes in the future.  A permanent injunction did not improperly enjoin prosecution of criminal offenses as it did not impede prosecution of the homeowner for violating county ordinances, but required compliance with the ordinances and prohibited violation in the future.  It simply gave the county an additional avenue to enforce its ordinances against the homeowner.

6.        C&H Development, LLC v. Franklin County, 294 Ga.App. 792, 670 S.E.2d 491 (2008).

Franklin County’s failure to comply with the Zoning Procedures Law governing notice of hearing on a proposed conditional use permit invalidates the county’s action.  O.C.G.A. § 36-66-4(a).  The Zoning Procedures Law requires that notice of a proposed hearing be published “[a]t least 15 but not more than 45 days prior to the date of the hearing.”  Therefore, the published notice of the hearing 46 days before the scheduled date of the hearing did not satisfy the mandatory requirements of the Zoning Procedures Law.

7.         Hardin v. Banks County, 294 Ga.App. 327, 670 S.E.2d 133 (2008).

Banks County approved a developer’s request to rezone 126 acres of property for subdivision development.  The Plaintiffs, who owned land next to the proposed development, filed a petition for judicial review.

The threshold issue was standing.  A citizen challenging a zoning decision must show a substantial interest which would suffer substantial damage by reason of the contested rezoning.  The trial court’s decision as to standing will not be reversed absent clear error, although the appellant court will review de novo any questions of law inherent in the decision.

The Plaintiffs’ evidence showed that the proposed development would create “turbid” muddy water runoff that would enter their property and irrigation lake.  Evidence of specific damage by the Plaintiffs revealed that the Plaintiffs operated a nursery business downstream, and testimony was certain that the Plaintiffs could not sell shrubs irrigated with muddy water which, according to the Plaintiffs, would put them out of business.  The Hardins therefore were found to have an interest not just as adjacent homeowners but as business owners, and the court could not ignore the impact of the decision on that business.  For that reason, the Plaintiffs were entitled to standing to contest the rezoning of the property.

The Plaintiffs contended that the rezoning application should have been denied because the developer failed to file a site plan as part of the rezoning application.

The Banks County zoning ordinance required the submission of a site plan. In addition, the court reasoned that the zoning ordinance required a county to review the application based on certain criteria, such as land use, development suitability, and impact on nearby property.  Without a site plan, according to the court, officials had little information about the proposed use and how it would affect bordering property, thus adversely affecting the ability to analyze the required criteria.  In addition, courts have repeatedly held that procedural requirements within local zoning ordinances require strict compliance.

Since the local authority failed to follow its own zoning procedures by neglecting to obtain the required site plan from the developer, the trial court erred in affirming the board’s decision.  The action was remanded with direction that the application for rezoning be returned to the board for further consideration in compliance with the applicable zoning requirements.

8.        Stendahl v. Cobb County, 284 Ga. 525, 668 S.E.2d 723 (2008).

In order for the court to invalidate a rezoning classification of a neighboring property, a party must show the zoning change violated the party’s constitutional rights, was the result of fraud or corruption, or the zoning power of the local government was manifestly abused to the oppression of the complaining party.

The court reasoned that in the grant or denial of a zoning application the governing authority acts in a legislative capacity.  When the constitutionality of the legislative enactment is challenged, the court affords de novo review which means that the superior court in reviewing the rezoning decision is not limited to examination of the evidence presented to the zoning authority.  Contrary to appeals which involve conditional use permits, the “any evidence” standard of the administrative record does not limit the court from receiving new evidence, even evidence from expert witnesses not appearing before the local government as a basis for making its decision.

The court further found that the owner of the property subject to rezoning is not an indispensible party where the applicant for rezoning has entered into a contract for the sale with the owner contingent on the applicant obtaining rezoning.