What’s Going on in the Zoning Legal World?

Georgia Association of Zoning Administrators

Winter Conference

February 7, 2013

by

FRANK E. JENKINS, III

JENKINS & BOWEN, P.C.
fjenkins@ga-lawyers.pro

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


11 Cedar View Drive

Savannah, Georgia  31410

I. SPECIAL USE PERMITS

City of Roswell v. Fellowship Christian School, Inc., 281 Ga. 767,
642 S.E.2d 824 (2007).

Fellowship Christian School (FCS) applied to Roswell for a conditional use permit to construct several new buildings including a 1500-seat football stadium.  After considering the evidence, the city approved the permit for the buildings, but did not approve the stadium.
In its decision, the Supreme Court upheld the decision of the city to deny the stadium.  It reasoned that the city’s conditional use permit ordinances granted the city discretion on acting on an application rather than mandating approval of the application as a matter of right.  Only if the city was guilty of a gross abuse of discretion would the denial of the permit be reversed.  The court also concluded that if there is “any evidence” to support the city’s decision, it must be upheld. 
The evidence presented to the city showed that there already existed two stadiums at other high schools within one mile of FCS’s property.  FCS’s own traffic study showed that simultaneous varsity football games create the potential for multiple athletic events along the road.  The evidence showed that two or three simultaneous events along the two-lane road would create severe traffic congestion following a football game.
The court found that traffic congestion is a valid consideration in regulation of land use, and since the evidence showed that FCS’s proposed stadium would exacerbate an already existing traffic problem, that it was reasonable for the city to deny the application for a permit to construct the stadium.  According to the court, “preserving the character of an existing neighborhood is a legitimate purpose of zoning and planning.” 
Since the evidence showed a rational basis for the denial of the permit for the stadium, the court rejected FCS’s contention that it was denied equal protection.

II. VESTED RIGHTS

1.         Café Risqué/We Bare All Exit 10, Inc. v. Camden County, 273 Ga.             451, 542 S.E.2d 108 (2001).

Where a local government issues a permit which is in violation of an existing ordinance, even if issued under a mistake of fact, the permit is void and the holder does not acquire any vested rights.  This is true even if substantial expenditures were made in reliance on the void permit.  A local government is not prohibited from revoking an improperly issued permit.

2.        North Georgia Mountain Crisis Network, Inc. v. City of Blue Ridge, 248 Ga.App. 450, 546 S.E.2d 850 (2001).

A land use that is merely contemplated for the future but unrealized as of the effective date of a new zoning regulation does not constitute a nonconforming use.  A property owner may acquire a vested right to use property where he makes a substantial change in position by expenditures in reliance on the probability that a building permit will issue or based upon an existing ordinance and the assurances of zoning officials.  But where the only change in position is the purchase of the property itself, the purchase does not confer a vested right to a particular use by the purchaser.

3.        Meeks v. City of Buford, 275 Ga. 585, 571 S.E.2d 369 (2002).

The issue in this case is whether a property owner obtained a vested right to use undeveloped investment property in accordance with a variance granted in 1985, 14 years earlier.  In finding the earlier variance no longer valid, the court relied on the rule that a property owner must make a substantial change in position, make substantial expenditures, or incur substantial obligations in order to acquire a vested right.  In this case, the mere reliance on a variance without showing substantial change in position by expenditures or other obligations does not vest a right in the landowner to develop in accordance with the earlier variance which would no longer be valid by virtue of a subsequently adopted zoning ordinance.

4.        Marietta Properties. LLC. v. City of Marietta, 732 S.E.2d 102 (Court of Appeals, decided August 31, 2012).

A property owner claiming a vested right to use property must make that claim to the local government before an appeal is made to the superior court.  A claim of vested right to use property may not be made for the first time in superior court.

5.        Union County v. CGP, Inc., 277 Ga. 349, 589 S.E.2d 240 (2003).

The issuance of a building permit results in a vested right only when the permit has been legally obtained, is valid in every respect, and has been validly issued.  Where a permit was issued to build a subdivision which was in violation of the flood control ordinance, the permit was not valid and the developer did not obtain a vested right to complete the subdivision.

6.        Cohn Communities, Inc. v. Clayton County, 257 Ga. 357, 359 S.E.2d 887 (1987).

“The rule in Georgia is that where a landowner makes a substantial change in position by expenditures in reliance upon the probability of the issuance of a building permit, based upon an existing zoning ordinance and the assurances of zoning officials, he acquires vested rights and is entitled to have the permit issued despite a change in the zoning ordinance which would otherwise preclude the issuance of a permit.”  The expenditure of $600.00 was not substantial and thus did not accord the developer of a proposed multi-family building a vested right.

7.         Corey Outdoor Advertising, Inc. v. The Board of Zoning Adjustments of the City of Atlanta, 254 Ga. 221, 327 S.E.2d 178         (1985).

Property owner did not obtain a vested right to build a sign even though the city issued a permit if the permit was invalided because the location of the sign violated the sign ordinance.

8.        Haralson County v. Taylor Junkyard of Bremen, Inc., 291 Ga. 321, 729 S.E.2d 357 (2012).

Appeal to superior court from zoning board by mandamus authorized unless zoning ordinance provides appeal by other means.

On appeal, superior court will uphold board’s decision if there is any evidence in support of it.

9.        Cobb County v. Peavy, 248 Ga. 870, 286 S.E.2d 732 (1982).

Issuance of business license does not create vested right.

10.      BBC Land and Development, Inc. v. Butts County, 281 Ga. 472, 640 S.E.2d 33 (2007).

The plaintiffs bought land in Butts County for development.  At the time of purchase, the zoning allowed construction of homes with a minimum size of 1,500 square feet.  The plaintiff submitted plats showing houses of that size.  The county approved the plat, and the plaintiffs expended money developing the properties consistent with the existing zoning.  Thereafter, and prior to requests for building permits, the county amended its zoning ordinance to require a minimum house size of 2,000 square feet in that zoning district.  The plaintiffs later sold lots in the subdivision to builders.  The county denied building permits to builders because the proposed houses did not comply with the 2,000-square foot minimum under the amended zoning ordinance.

The question presented was whether the builders who purchased the property had a vested right to develop the property consistent with the minimum size house of 1,500 square feet rather than the 2,000 square feet under the amended ordinance.  The court held that the builders were subject to the amended minimum square foot restriction.

The court reasoned that there was a crucial difference between vested rights and nonconforming uses.  Nonconforming uses are uses or structures existing prior to the enactment of an ordinance which renders them nonconforming.  A use which is merely contemplated for the future, but not yet realized as of the effective date of an amended ordinance, is not a nonconforming use.  A vested right is one which cannot be divested without the consent of the person to whom it belongs.  The court thus concluded that a vested right is earned by the owner’s substantial change of position in relation to the land, including substantial expenditures or in incurring substantial obligations.  That gives the owner the right to develop property in accordance with prior zoning restrictions.  But vested rights are personal to the owner and are not transferable with the land.  The choice by the owner to sell the property is voluntary, but if it chooses to sell, then it sells with the knowledge that the vested right is not transferable to a purchaser.

The following is the General Assembly’s attempt to change the legal effect of the BBC decision:

”Vested interests in property stemming from the approval of land disturbance, building construction, or other development plans, permits, or entitlements in accordance with a schedule or time frame approved or adopted by the local government shall be descendible, devisable, and alienable in the same manner as estates in possession.”  O.C.G.A. § 44-5-40

III.      SOLID WASTE MANAGEMENT PLANS

McKee v. City of Geneva, 280 Ga. 411, 627 S.E.2d 555 (2006).

Property owners sought written verification from the city to locate a solid waste handling facility.  The plaintiff’s intent was to obtain a permit for a solid waste handling facility from the EPD.  Issuance of the permit was dependent in part upon verification from the city that the proposed facility did not violate any zoning or land use ordinances and was consistent with the solid waste management plans (SWMP).  O.C.G.A. § 12-8-31.1(b) requires that the SWMP “shall, at a minimum, … identify those sites which are not suitable for solid waste handling facilities based on environmental and land use factors.”  Since the city’s SWMP failed to comply with the statute in that areas unsuitable for solid waste facilities were not identified, the city could not rely upon its SWMP to deny the solid waste handling facility.  The property owner therefore was entitled to grant of writ of mandamus requiring the city to issue the verification so that he could seek a permit from the EPD.

IV.      ENFORCEMENT OF ZONING CONDITIONS

Cherokee County et al., v. Martin, 253 Ga.App. 395, 559 S.E.2d 138 (2002).

Cherokee County rezoned Martin’s property to a PUD classification based on a site plan which showed that a portion of the property would be used as an “assisted living” facility.  But Cherokee County in the adopting ordinance approving the rezoning did not stipulate that the rezoning must comply with the site plan.  Later, Martin decided to build an apartment complex instead of an “assisted living” facility, but the county refused to issue a permit although both uses were permitted in the zoning district.  Thereafter, Martin sued Cherokee County contending he had the right to build the apartment complex.

Finding in favor of Martin and his right to build the apartment complex, the court resolved that there was no language within the rezoning resolution adopted by the county which referenced conditions or required Martin to abide by the particular use specified in his site plan.  The court reasoned that since a zoning ordinance restricts an owner’s right to freely use his property, it must be strictly construed in favor of the property owner and never construed beyond its explicit terms.  Furthermore, a court may not infer that the zoning of property is conditioned to a particular use, but should require that any conditions be expressly made a part of the rezoning resolution.  “Rezoning is conditional only if the conditions are set forth in the rezoning resolution itself or if an examiner of the resolution would be alerted to the existence of such conditions.” (at p. 397)

V.        ANNEXATION:  RESOLUTION OF LAND USE CLASSIFICATION DISPUTES

In the 2007 session, the General Assembly adopted new statutes governing the resolution of zoning and land use disputes between cities and counties resulting from annexation of property by cities.  The new provisions were effective on September 1, 2007.  The statutes governing the new resolution procedure are found at O.C.G.A. § 36-36-11 and O.C.G.A. §§ 36-36-110 through 119.

The new procedures require a city to notify a county by certified mail or statutory overnight delivery of the receipt of a petition for annexation.  The notice must include the proposed zoning and land use for the area to be annexed.  If the county does not object, the annexation may proceed as otherwise provided by law.

On the other hand, the county may object to the proposed zoning and land use for the annexed property.  Several conditions must obtain as a requisite to the county’s objection to the annexation.  O.C.G.A. § 36-36-113 provides that the county may object if the annexation causes a material increase in burden on the county related to (1) the change in zoning or land use, (2) proposed increase in density, and (3) infrastructure demands related to the proposed change in zoning or land use.  But, it further provides in subsection (d) of section 113 that the proposed change in zoning or land use must result in (A) substantial change in intensity of the use of the property or a change to a significantly different allowable use or a use which significantly increases the net costs of infrastructure or diminishes the value of the useful life of a capital outlay project which the county developed in the area to be annexed.

The law requires the appointment of an arbitration panel composed of five members selected by the Department of Community Affairs from a pool of arbitrators consisting of appointees of various backgrounds related to experience.  The arbitration panel must convene to receive evidence and argument from the city, the county, and the applicant for annexation.  By majority vote it shall render a decision which will be binding on all of the parties.  In arriving at its decision, the panel is required by statute to consider a number of standards including, in part, existing comprehensive land use plans for the city and county, and existing land use and zoning patterns and infrastructure of the area to be annexed.

If the city, county, or applicant for annexation is dissatisfied with the arbitration panel’s decision, an appeal may be filed in the superior court of the county of the annexation within 10 days after receipt of the panel’s findings.

After a final resolution is reached to an objection by the county to the zoning and land use of the annexed property, the city is prohibited from changing the zoning of the annexed property for one year with the exception that a change may be made if the service delivery agreement or comprehensive plan adopted by the city and county is amended to be consistent with the changed zoning or land use.  If the city and the applicant for annexation accept the recommendations of the arbitration panel, or the decision of the court on appeal, the annexation may proceed under the established annexation procedures.  If the arbitration panel recommendation or court decision is not accepted, then the city is not authorized to proceed with annexation.

VI.      ZONING PROCEDURES LAW, O.C.G.A. § 36-66-1 et seq.

1.         Tilley Properties, Inc. v. Bartow County, 261 Ga. 153, 401 S.E.2d 527 (1991).

A property owner wished to use property for surface mining and needed to get a certificate of land use compliance from the county before such a permit was issued.  The county denied the permit on the grounds that the property was zoned for agricultural uses only.  The Supreme Court held that the zoning ordinance was invalid because it did not comply with the Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq.  The court held that the ZPL requires that, before a zoning ordinance is adopted, an ordinance detailing policies and procedures must be adopted, and that ordinance is also subject to the ZPL’s notice and public hearing requirements.  Further, where the zoning ordinance is procedurally invalid, there are no legal restrictions on the use of land, and the property owner was entitled to mandamus relief ordering the county to issue the certificate of land use approval.

A practice pointer worth mentioning that is not apparent on the face of the opinion is that the county readopted the zoning ordinance while the case was on appeal.  Although the property owner was ultimately successful and allowed its intended use of the property, readoption of the zoning ordinance in a manner compliant with the Supreme Court’s holding prevented a gap period in which the county was without zoning.  Thus, other property owners were prevented from capitalizing on the procedural defect in the original zoning ordinance and vesting rights to undesirable uses.

2.        Kingsley v. Florida Rock Industries, Inc., 259 Ga.App. 207, 576 S.E.2d 569 (2003).

Florida Rock challenged the validity of Lamar County’s Comprehensive Land Use Plan on the ground that it was not adopted in accordance with the notice requirements of the Zoning Procedures Law, O.C.G.A. § 36-66-1 et. seq.  Lamar County had given only 14 days notice of the public hearing on the plan rather than the minimum 15 days required by the ZPL.  The court however reasoned that planning was not the same as zoning.  “Comprehensive planning . . . refers to ‘any plan by a county,’ without any limitation to the type of planning involved.” (at p. 210).  Planning, according to the court, does not impose immediate restrictions on land use, but “contemplates the evolvement of an over-all program or design of the present and future physical development of a total area and services. . . .”  101A CJS, Zoning and Land Planning, § 2(b) (1979).  Zoning is a means by which the comprehensive plan is carried out; it is subject to the constitutional protections of equal protection and due process and the prohibition against taking private property without just compensation.  The notice for adopting a comprehensive plan is that usually followed by a local government for public hearings, not zoning hearings.  See DCA Regulations at Ga. Comp. R. & Regs. R. 110-3-2-.06(4)(a).  Since Lamar County followed its usual public hearing procedure, it satisfied the notice requirements for a hearing on the comprehensive plan.

VII.    ADOPTION OF THE OFFICIAL ZONING MAP

Mid-Georgia Envtl. Management Group LLLP v. Meriwether County, 277 Ga. 670, 594 S.E.2d 344 (2004).

Application for rezoning challenged validity of Meriwether County’s zoning map because it didn’t keep superseded portions of the zoning map; it only updated the map and discarded the superseded portions.  This argument was rejected by the court; there is nothing in the ZPL, according to the court, that conditions the validity of a zoning map on the retention of superseded portions.

The court also rejected the challenge that the county did not correctly incorporate the zoning map into the zoning ordinance.  Concluding that a zoning map is a “zoning decision” under the ZPL, it must be adopted in accordance with it.  In this case, the county properly adopted its zoning map for the following reasons:

– it incorporated the zoning map by reference stating that it was a part of the zoning resolution;

– the ordinance provided that the zoning administrator shall maintain a copy of the zoning map;

– the board minutes show that the board of commissioners had before it a copy of the zoning map at the time it was adopted; and

– the zoning map was in existence at the time the zoning applicant bought the property and the map was in the administrator’s office.