What’s New in the Zoning Legal World?

Georgia Association of Zoning Administrators

Summer Conference
July 23, 2010

BY

FRANK E. JENKINS, III

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

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


24 Drayton Street

Suite 1000
Savannah, Georgia  31401


I. NEW LAWS ADOPTED BY THE GENERAL ASSEMBLY RELATING TO ZONING AND LAND USE

1. Amendment to Article 2, Chapter 2, Title 8 of the O.C.G.A. Relating to Factory-Built Buildings and Dwelling Units

In 2010 the Georgia General Assembly amended the Official Code of Georgia to add § 8-2-170 and § 8-2-171.  The amendment is effective on and after September 1, 2010 and applies to the right to install and occupy a pre-owned manufactured home.  It prohibits any county or city from imposing health and safety standards or conditions based on the age of the manufactured home.  It does provide for the establishment of health and safety standards and authorizes an inspection program for pre-owned manufactured homes when relocated from their current locations.  It also absolves any inspector of pre-owned manufactured homes from any liability resulting from defects or conditions in the pre-owned manufactured homes.

The Following Chapter was Adopted by the 2010 Georgia General Assembly, O.C.G.A. § 36-66b-1 et seq., and is Known as the “Advanced Broadband Collocation Act.”

The intent of this legislation is to limit a local government’s review and evaluation of an application to either modify or collocate wireless support structures located within its jurisdiction.  Modification of a wireless support structure means improvement, upgrade, expansion, or replacement of an existing wireless facility that does not increase the height of the structure or the dimensions of the equipment compound.  Collocation, as used in the act, means the placement or installation of new wireless facilities on previously approved wireless support structures that negates the need to construct a new freestanding wireless support structure.

If an applicant applies to a local government for modification or collocation of a preexisting wireless support structure, the act limits the review and evaluation of the local government to conformance with an applicable site plan, building permit requirements, zoning, and land use conformity.  But an application may not be subject to additional zoning, land use, or special use permit approvals beyond the initial zoning, land use, or special permit approval issued for the existing wireless support structure.  Its intent is to require that previously approved wireless support structures may be modified or accept collocations without additional zoning or land use review beyond that required by the local government for issuance of building or electrical permits.

This streamlined process required by this act applies when the proposed collocation does not increase the height or width of the wireless support structure, or dimensions of the equipment, or exceed the weight limits for the wireless support structure.  Any proposed collocation must comply with applicable conditions of approval applied to the initial approval of the wireless support structure.

The act also requires a local government to make its final decision to approve or disapprove the application within 90 days of the filing of the application for modification or collocation.  If the application in incomplete, an applicant must be notified within 30 days of filing the incomplete application.  The 90 days within which the local government must make its decision is tolled until the application is complete.

3. Amendments to O.C.G.A. §§ 8-2-111 and 8-2-112 Establishing Limitations on Local Governments and Restricting Residential Industrialized Buildings

In 2010, the Georgia General Assembly adopted amendments to the Industrialized Building Code in which it identified a “residential industrialized building” as any dwelling unit designed and constructed in compliance with the minimum one- and two-family dwelling code made, fabricated or assembled in a manufacturing assembly which cannot be inspected at the installation site without disassembly or damage to the structure.

It does not include a manufactured home.  The act provides that all industrialized buildings and residential industrialized buildings bearing the insignia of approval issued by the commissioner of community affairs are deemed to comply with minimum standard codes and all ordinances and regulations enacted by any local government.  It specifically prohibits any local government from excluding residential industrialized buildings from any residential district solely because the building is a residential industrialized building.  But it reserves to the local government the right to restrict by land use and zoning laws such things as building setback, yard requirements, subdivision regulations, and architectural and aesthetic requirements.

II. NON-CONFORMING USES

1. Cox v. City of Sasser, 300 Ga.App. 251, 684 S.E.2d 385 (2009)

The plaintiff property owners placed a mobile home on their property where the parents of one of the property owners resided until their deaths in 1994 and 1995.  In 2006, one of the property owners decided to replace the mobile home, which was a 660-square foot mobile home, with a 1980-square foot manufactured home.  The property was located in an R-1 single-family residential zoning district which did not permit mobile homes or manufactured homes.  The city clerk nonetheless issued a permit for a “manufactured/modular/home” which the property owner purchased and placed on the property in 2006.

The property owners contended they had a right to replace the former mobile home with the new manufactured home.  The court, however, disagreed as the ordinance permits all residences that have been determined to be nonconforming to “make needed routine improvements to include replacement.”  The ordinance further provided that a nonconforming use may not be expanded or extended.  The court found that the mobile home was a nonconforming use and the placement of the new 1,980-square foot home was not a replacement authorized by the ordinance.

The property owner also alleged that the city was estopped from requiring the removal of the manufactured home since the city clerk had issued a permit.  But the court found that the clerk’s act of issuing the permit was unauthorized as she did not have the authority to waive any of the conditions of zoning, and therefore, the city was not estopped from enforcing the zoning ordinance despite the issuance of the permit.

2. The Ansley House, Inc. v. City of Atlanta, 260 Ga. 540, 397 S.E.2d 419 (1990).

An ordinance that specifies termination of a nonconforming use by cessation of the use for a specific time should further state that the use terminates regardless of whether there is an intent to abandon.

3. Henry v. Cherokee County, 290 Ga. App. 355, 659 S.E.2d 393 (2008).

Expanding a nonconforming use on the same lot may be prohibited if the ordinance specifically provides that a nonconforming use may not be extended on either the same or adjoining property.

III. 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)

IV.CONDITIONAL USE PERMITS

1.Jackson County v. Earth Resources, Inc., 280 Ga. 389, 627 S.E.2d 569 (2006).

In reviewing a decision by a local government in either granting or denying a conditional use permit, the court is bound to uphold the decision of the local government where there is any evidence supporting its decision.  The court in this case found that the local government’s denial of a conditional use permit to develop a construction and demolition landfill was supported by the evidence where there was more than merely “generalized fears” presented by neighboring property owners.  Evidence of specific concerns was raised as to truck traffic to and from the site of the landfill.  Moreover, the project was not consistent with a comprehensive land use plan which called for mid-density residential use, an appraiser opined as to a negative effect on surrounding land values, and the property owner’s representations concerning ground water contamination were rebutted.  The Jackson County Zoning Ordinance granted discretion to the county on whether to grant or deny a conditional use permit.  It provided in Sec.13-60 that “[t]he conditional use would be consistent with the needs of the neighborhood or the community as a whole, be compatible with the neighborhood and would not be in conflict with the overall objective of the comprehensive plan.”  Because of discretion given to the county, it may consider various factors in determining whether a conditional use permit would meet these criteria.  For these reasons, the court upheld the county’s denial of the conditional use permit.

2.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.

V. GEORGIA LAW ON MANUFACTURED HOUSING

1.Excluding Manufactured Homes from Residential Districts<

In King v. City of Bainbridge,  276 Ga. 484, 577 S.E.2d 772 (2003), King, a resident of the city, was sued for placing her manufactured home in the R-2 zoning district from which such homes were excluded under the zoning ordinance.  In her defense of the action against her, she challenged the zoning ordinance in a two-pronged attack.  One was under the National Manufactured Housing and Safety Standards Act of 1974, 42 U.S.C. §§ 5401-5426.  King contended that the fact that manufactured homes were excluded from the R-2 district, while modular homes (Department of Community Affairs homes) were permitted, evinced a regulatory scheme in violation of the national act.  In her second attack, King asserted that the exclusion of manufactured homes from the R-2 district exceeded the police power of the city; thus the ordinance according to her challenge was unconstitutional.

The Supreme Court’s response was a sweeping rejection of both challenges.  In upholding the city’s zoning ordinance, the court concluded that the ordinance did not violate the HUD Act, nor was it an unconstitutional exercise of the city’s police power.  But, of significance to those of us who practice in the planning and zoning field are the rules laid down by the court which now guide us in crafting zoning ordinances.  Those rules are as follows:

  1. Local governments may draw a distinction in their zoning ordinances between manufactured homes (HUD homes) and modular homes (DCA homes).  As was the case in City of Bainbridge, a zoning ordinance may exclude manufactured homes in a zoning district, but permit modular homes in the same district.
  2. The City of Bainbridge’s zoning ordinance excluded manufactured homes from all zoning districts, except manufactured home parks and subdivisions. Since this zoning ordinance was approved by the court, local governments may also adopt the same restrictions or similar variations with reasonable assurance that they will be upheld if challenged in court.

The purpose for excluding manufactured homes is still important, however.  Without a purpose, a restriction in a zoning ordinance is arbitrary and unreasonable, and thus unconstitutional.  In City of Bainbridge, the court found the zoning ordinance valid and constitutional because the restrictions were designed to regulate the quality of housing and advance general safety concerns.  Other reasons may also be used and many of those are enumerated in this decision.  The Supreme Court specifically noted Courts routinely uphold zoning ordinances broadly restricting mobile home placement. A wide variety of rationales have been found sufficient to justify these ordinances: preserving land for low density, single-family dwellings, protection of property values, guarding against increased crime, guarding against traffic congestion, maintaining aesthetics, regulating population density, preventing waste and sewage problems, regulating quality of housing stock, and concerns about wind vulnerability.  Hence, those reasons all appear to be legitimate.  The reasons don’t have to be stated in the zoning ordinance, but it is a better practice to develop acceptable reasons when preparing the record prior to adopting a zoning ordinance.  The best place to put the basis for manufactured home restrictions is in the comprehensive land use plan.
Placement of manufactured homes is now largely up to the discretion of the local government.  A careful and reasoned approach to restrictions on manufactured homes best serves the community, as manufactured homes should be permitted in every community.

VI.KEY CONSTITUTIONAL ISSUES IN SIGN ORDINANCE REGULATION

1.Union City Board of Zoning Appeals et al. v. Justice Outdoor Displays, Inc., 266 Ga. 393, 467 S.E.2d 875 (1996).

In a multifaceted challenge to the Union City sign ordinance, the court made the following holdings, among others:

A.The city’s sign ordinance which distinguishes between “off-premise signs” and “on-premise signs” violates the First Amendment to the United States Constitution and the Free Speech Clause of the Georgia Constitution.  Since the city restricts the content of a sign based upon its location, it will not survive strict scrutiny.  The city effectively prohibits signs bearing non-commercial messages in zoning districts where a sign of the same size and structure may display commercial messages.

B.The city’s sign ordinance is also unconstitutional to the extent that it limits the messages on specific categories of signs, which are principal identification signs, marketing signs, construction signs, instructional signs, real estate directional signs, real estate signs, and special event signs.  The effect of the ordinance was to limit the message of certain signs to those identifying the type of sign that may be used.

C.The ordinance provisions which restrict signs in residential zoning districts to on-premise signs and certain temporary or special signs, such as political signs, are likewise unconstitutional.  The court reasoned that the ordinance prohibits vital expression through the unique medium of residential signs without providing a viable alternative.

D.The city’s time limitation on political signs during a period of six weeks prior to and one week after an election is likewise unconstitutional.  Since the ordinance does not place time limits that a resident may post a sign selling his house, for example, restrictions on political signs are necessarily content based and unconstitutionally restricted.

2. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (2005).

Neptune Beach’s sign code violated the First Amendment in two ways:  it exempted from regulation certain categories of signs based on their content without compelling justification for the differential treatment, and it contained no time limits for responding to applications for sign permits.

An example of the types of signs exempt from the regulations and thus not requiring a permit are 1) flags and insignia of any government, religious, charitable, fraternal or other organizations; 2) signs on private premises directing and guiding traffic and parking on private property; 3) and holiday lights and decorations.  Thus, the city’s sign code discriminates against certain types of speech (signs) based on content.  It exempts from regulation some categories of signs based on content, but does not exempt others based on content.  Generally, laws that distinguish favored speech from unfavored speech on the basis of the ideas or views expressed are content based.  A content-neutral ordinance applies equally to all and not just those with a particular message or subject matter in mind.  But where the city exempts certain signs based upon the content or message within, the sign is not content neutral.

Where the sign code is a content based restriction on speech, to be constitutional it must serve a compelling state interest and be narrowly drawn to achieve that end.  The city’s sign ordinance was based on general purposes of aesthetics and traffic safety, but these reasons are not “compelling government interests” for purposes of First Amendment analysis.  Moreover, the sign code’s exemptions are not narrowly tailored to achieve the city’s traffic safety or aesthetic goals.  The code thus is not justified by a compelling government purpose and therefore fails to survive strict scrutiny required under First Amendment analysis.

The ordinance is also unconstitutional because it fails to impose time limits for permitting decisions and thus is an invalid prior restraint on speech.  To satisfy time limit requirements, an ordinance must insure that permitting decisions are made within a specified time period.  But here the city’s sign code contains no time limits on permitting and therefore is an unconstitutional restraint on speech for that reason.

3.Tinsley Media, LLC v. Pickens County, Georgia, United States Court of Appeals, Eleventh Circuit, decided October 12, 2006.

Plaintiff filed eleven applications with the county for permission to erect billboards, which were prohibited under the existing sign ordinance.  The applications were denied, and the plaintiff filed suit claiming several provisions of the county’s sign ordinance violated the U.S. and Georgia Constitutions.

Regulations that restrict expression of protected speech are analyzed under a four-part analysis, as follows:  (1) commercial speech is protected “only if that speech concerns lawful activity and is not misleading;” (2) a restriction is valid if it seeks to implement a substantial government interest; (3) the restriction directly advances that interest; and (4) it reaches no further than necessary to accomplish the given objective.

The court found that the county’s ordinance contained no statement of purpose at all.  Without a statement of purpose, according to the court, the statute cannot satisfy the “substantial government interest” requirement under federal law.

In its decision, the court pointed out other constitutional requirements in a sign ordinance.  The ordinance must contain standards for approval, a time limit for granting or denying a permit, and procedures for appeal.  If a sign ordinance lacks any of these provisions, it is subject to challenge that it is unconstitutional.