Legal and Legislative Updates, GAZA, 02-04-16

Georgia Association of Zoning Administrators
Winter Conference
February 4, 2016
Legal and Legislative updates

BY

FRANK E. JENKINS, III

JENKINS, OLSON & BOWEN, P.C.

15 South Public Square
Cartersville, Georgia 30120

11 Cedar View Drive

Savannah, Georgia  31401

fjenkins@ga-lawyers.pro
www.GA-Lawyers.pro
(770) 387-1373

  1. NON-CONFORMING USES

    Olympus Media, LLC v. City of Dunwoody, ___ Ga.App. ___, 780 S.E.2d 108 (2015).

    Non-conforming uses are those which were existing prior to the enactment of an ordinance which renders them non-conforming. A permit issued for an illegal use not permitted by an existing ordinance or an illegal non-conforming use is void. Such permit cannot authorize a continued use in violation of the zoning ordinance and does not vest constitutional rights. Historically, abandonment of a non-conforming use was construed to mean an intentional and knowing relinquishment of a right to devote the property to a non-conforming use, as evidenced by an overt act or failure to act sufficient to support the implication that abandonment was intended. In this case, the billboard owner's dismantling a sign and upgrading it to accommodate a full-face digital LED signboard reflected the owner's intent to enhance its use and not abandon it.

    Southern States - Bartow County, Inc. v. Riverwood Farm Property Owners Association, Inc., 331 Ga.App. 878, 769 S.E.2d 823 (2015).

    Appellant sought approval for operation of a solid waste landfill. It first applied for a certificate of zoning compliance in 1989 after the county zoning ordinance was struck down in 1991. In 1994 the superior court of Bartow County issued an order ruling that since no valid zoning ordinance controlled in 1989 (the date upon which the zoning ordinance was invalid) the appellant had a vested right for a certificate of zoning compliance. That certificate was issued, but the appellant did nothing to commence the construction or operation of the landfill for almost 20 years.

    In 1993 Bartow County adopted the following provision of its zoning ordinance:

    Any intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance or the adoption of an amendment thereto shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance or the adoption of an amendment thereto regardless of the intent or expectation to commence or abandon such non-conforming use.

    The court looked at the ordinance amendment to see if it was clear and unambiguous. It found that it was. Commencement of the non-conforming use required more than submitting mere paperwork. The trial court was correct in finding that the appellant failed to comply with the 1993 zoning ordinance and that its vested right to operate the landfill lapsed. But the appellant raised a constitutional challenge to that provision of the ordinance which "forbids passage of retroactive laws which injuriously affect the vested rights of citizens." Article I, Section I, Paragraph X. The case was remanded to the trial court to consider the developer's constitutional challenge.

    Henry v. Cherokee County, 290 Ga.App. 355 (2008).

    To prohibit a non-conforming use from expanding on the same lot, an ordinance should provide the following: "No such non-conforming use of land shall in any way be extended, either on the same or joining property."

  2. APPEALS OF ADMINISTRATIVE DECISIONS TO THE SUPERIOR COURT

    Druid Hills Civic Association Inc. v. Buckler, 328 Ga.App. 485 (decided July 10, 2014).

    In administrative or quasi-judicial decisions (such as a variance or building permit), no new evidence may be introduced to the court or otherwise admitted into evidence. The only evidence to be considered by the court is that introduced at the administrative hearing before the local governing board or agency.

    Standing of a party to appeal a local government decision shall be based on whether the person or entity appealing the decision has a substantial interest in the zoning board's or agency's decision such that the applicant would suffer some special damage as a result which is not common to other property owners similarly situated. An applicant who fails to object to the standing of an opponent at the administrative hearing may not object for the first time in superior court.

    City of Statesboro v. Dickens, 293 Ga. 540 (2013).

    A local ordinance may provide and thus require that an appeal of a decision regarding a permit, such as a variance, must proceed to superior court only by writ of certiorari.

    Mortgage Alliance Corporation v. Pickens County, 294 Ga. 212 (2013).

    Appeals of administrative decisions by local government must be filed in the superior court within 30 days that the decision is reduced to writing and signed by the appropriate official. Taco Mac v. Atlanta Board of Zoning Adjustment, 255 Ga. 538 (1986), Chadwick v. Gwinnett County, 257 Ga. 59 (1987), and City of Suwanee v. Settles Bridge Farm, LLC, 292 Ga. 434 (2013). Before a land owner may file a claim in court challenging the constitutionality of a special use permit or a requirement of a special use permit, it must first apply to the local authority for relief and exhaust the administrative remedies.

  3. City of Suwanee v. Settles Bridge Farm, LLC, 292 Ga. 434 (2013).

    It is a general rule that a party must first apply to the local government for relief before it seeks a court decision that a local regulation is unconstitutional as applied to its property. This requirement of exhaustion of administrative remedies is intended to prevent unnecessary judicial intervention in local government matters and promotes judicial economy. This is because the local government, unlike the court, has the power to grant zoning relief. In this case, the court required that the property owner filing suit must first submit a special use permit application to the city planning commission and to the city council for review before filing an action in court.

  4. Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995).

    The property owners appealed the denial of a variance by the county and challenged the county's ordinance which required appeals to the superior court by writ of certiorari and contended that they were not afforded a due process hearing before the county's board of appeals.

    The court concluded that the county's ordinance may specify the proper judicial vehicle for appeals of administrative decisions on variances. In this case, the county's ordinance required that the disappointed property owner travel by way of writ of certiorari from the board of appeals to the superior court. This is because the decision-making process by the board of appeals is the nature of a judicial act; that means that the board of appeals determines the facts from the evidence and applies the ordinance's legal standards to those facts to reach a decision.

    The court rejected the plaintiffs' contention that they were denied a due process hearing before the board of appeals. The court found that the due process requirements were met in that: (1) the board gave notice of the hearings; (2) the plaintiffs were allowed to explain their reasons for requesting the variance; (3) they presented evidence in support of the application, "including letters, photographs, plats, and schedules of property values in the community"; (4) they answered questions from board members; (5) a verbatim transcript or detailed account of the hearing was available and formed an adequate basis for judicial review; and (6) the board explained to the plaintiffs the reasons for the denial and put that in writing. The plaintiffs further asserted that they were denied the opportunity to cross-examine witnesses, but that was rejected by the court because the plaintiffs never sought the opportunity to cross-examine witnesses. However, this suggests that a property owner, or indeed an interested party in opposition to the grant of a permit, should have the opportunity to present testimony by witnesses and to cross-examine witnesses to satisfy due process requirements.

    1. ADMINISTRATIVE HEARINGS

      A. Provide the required notice of the hearing as set forth in the local ordinance.

      B. Establish written procedures for conduct of the hearing and provide a copy to all attendees.

      The recommended procedures are as follows:

      • a. Allow the applicant to make the first presentation.

      • b. Provide for witness testimony.

      • c. Allow for cross-examination by interested parties (require interested parties to be represented by someone).

      • d. Allow interested parties to introduce evidence.

      • e. Allow cross-examination of the interested parties by applicant.

      • f. Require that all documents be marked as exhibits.

      • g. Upon conclusion of the hearing for each application, make a decision.

      • h. Reduce all decisions to writing.

    2. Prepare a record or file for each application which should include the application and any documents introduced or provided as exhibits and the transcript of the hearing. It is especially important that this be prepared in the event of an appeal.
    3. Have a professional staff member explain the case to the Board. Allow him or her to be examined as appropriate by the applicant or interested parties. The professional staff may make a recommendation of a desired result, but it is not required.
    4. Provide the same file to the applicant as is provided to each board member. Make sure each board member has a copy of the file prior to the hearing. Make the file available to the parties interested upon request.
    5. Have the official zoning map and future land use plan present at the hearing for use by anyone at the hearing.
    6. Record the public hearing, either by a tape recorder or a court reporter. If the case is appealed, prepare a transcript.

    On appeal, the superior court only reviews the record of the hearing before the local government; no new evidence is presented.

  5. ENFORCEMENT OF ZONING CONDITIONS

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

    "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."

  6. NOISE ORDINANCES

    Grady v. Unified Government of Athens-Clarke County, 289 Ga. 726 (2011).

    The following is a noise ordinance approved by the Georgia Supreme Court:

    Mechanical sound-making devices. It is unlawful for any person or persons to play, use, operate, or permit to be played, used, or operated any radio receiving device, television, stereo, musical instrument, phonograph sound amplifier or other machines or devices for the producing, reproducing or amplifying of sound and/or noise at such a volume and in such a manner so as to create, or cause to be created, any noises or sounds which are plainly audible at a distance of 100 feet or more from the building, structure, or motor vehicle or in the case of real property, beyond the property limits, in which it is located, whichever is farthest, between the hours of 11:00 p.m. and 7:00 a.m. Sunday through Thursday and between the hours of 12:00 midnight and 7:00 a.m. on Saturday and Sunday.

  7. GETTING THE SIGN ORDINANCE RIGHT

    Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218 (2015).

    Under the First Amendment, a municipal government may not restrict expression because of its message, ideas, subject matter, or content. Government regulation of speech in signs is "content based" and presumptively unconstitutional if the municipal ordinance applies to particular speech because of the topic discussed, the idea, or message expressed and requires the court to consider whether a sign regulation on its face draws distinctions based on the message a speaker conveys.

    Rule No. 1: Adopt a Statement of Legislative Purpose

    Rule No. 2: Sign Ordinances must be Content-Neutral

    Rule No. 3: Sign Ordinances must have Standards for Granting or Denying Sign Permit Applications

    Rule No. 4: Limit the Time in which a Decision on Sign Permit Applications must be Made

    Rule No. 5: Include a Provision that a Decision Denying a Sign Application Permit may be Judicially Appealed within 30 Days

  8. AMENDMENT TO ARTICLE 2, CHAPTER 2, TITLE 8 OF THE O.C.G.A. RELATING TO FACTORY-BUILT BUILDINGS AND DWELLING UNITS

    The Georgia General Assembly amended the Official Code of Georgia to add § 8-2-170 and § 8-2-171. The amendment applies to the right to install and occupy a pre-owned manufactured home. It prohibits any county or city from imposing health or safety standards or conditions based on the age of the manufactured home.

  9. AMENDMENTS TO O.C.G.A. §§ 8-2-111 AND 8-2-112 ESTABLISHING LIMITATIONS ON LOCAL GOVERNMENTS AND RESTRICTING RESIDENTIAL INDUSTRIALIZED BUILDINGS

    This 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.