Zoning and Land Use Law - Dennis J. Webb Jr., Marcia Mccrory Ernst, Davene D. Walker, and Kelley B. Gray

• Publication year: 2009

Zoning and Land Use Lawby Dennis J. Webb Jr.^* Marcia McCrory Ernst^** Davene D. Walker^*** and Kelley B. Gray^****

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law handed down by Georgia appellate courts between June 1, 2008 and May 31, 2009.¹ The cases surveyed fall primarily within five categories: (1) zoning; (2) condemnation; (3) nuisance and trespass; (4) easements and restrictive covenants; and (5) miscellaneous.

I. Zoning

A. Property Owner Not Indispensible Party on Zoning Appeal

In Stendahl v. Cobb County,² a rezoning applicant sought to rezone a sixty-five acre parcel. After the rezoning request was granted, neighbors filed an appeal, challenging the rezoning decision. The neighbors filed a motion to dismiss the complaint for failure to join an indispensible party.³ In support, they noted that the rezoning applicant did not own the subject property. Instead, the applicant entered into a purchase and sale agreement with the property owner, and the contract was contingent upon the rezoning applicant obtaining rezoning. The trial court granted the motion.⁴ On review, the Georgia Supreme Court reversed, holding as follows:

While the trial court was correct in its observation that the new zoning designation runs with the land and is not personal to the applicants who obtained it, it does not necessarily follow that the owners of the property are indispensable parties for purposes of an appeal from the grant of the re-zoning application. When the owner of the property for which re-zoning is sought is not the applicant for re-zoning but has entered into a contract for the sale of the property with the re-zoning applicant, which contract is contingent upon the applicant obtaining re-zoning, the owner does not fit within the definition of "indispensable party" because the case could be decided on its merits without prejudicing the rights of the owners since the re-zoning applicant is a party and presents a thorough case on behalf of itself and, ultimately, the owner.⁵

B. Public Service Commission Has Authority to Regulate Placement of Substations But is Not Required to Exercise This Authority

In Georgia Public Service Commission v. Turnage,⁶ residential property owners filed a petition with the Georgia Public Service Commission (PSC) to halt construction of an electrical substation. The PSC dismissed the petition, claiming it had no authority to regulate the siting of electrical substations and stating that neither regulations nor criteria had been created to guide decisions on siting. The property owners filed a petition for judicial review and a writ of mandamus in the trial court. The trial court denied the petition for judicial review on standing grounds.⁷ It granted the petition for mandamus, however,

"refus[ing] to countenance the counterintuitive proposition that there is no agency with the authority to make zoning-like decisions or provide any governmental review with regard to the siting of substations" or other complex construction projects, and finding that [Georgia law] "expressly vests the PSC with that power and thus holds that the PSC has a clear public duty to hear [the property owners'] case."⁸

Upon review, the Georgia Supreme Court reversed.⁹ The supreme court recognized the trial court's correct determination that the PSC's granted powers included authority to regulate substation placement.¹⁰ However, the court then reasoned that "whether preemption results from a statutory delegation of authority [was] a separate question from whether the PSC . . . actually exercised the particular power it [was] granted."¹¹ Because the PSC did not have rules and regulations covering substation placement, the PSC had not exercised its power over substation siting.¹² The court also noted that contrary to the trial court's reasoning, the supreme court "[had] not found any requirement that every property or even every complex construction project be subject to zoninglike restrictions."¹³ A mere grant of governmental power does not imply a duty to exercise the granted power, and the court held that this case at most involved a power that was optional to exercise.¹⁴

C. Developer's Sec. 1983 Equal Protection Claim Upheld

In Fulton County v. Legacy Investment Group, LLC,¹⁵ the plaintiff was a large volume developer and builder of single-family homes in Fulton County, Georgia for several years.¹⁶ In the spring and summer of 2006, the plaintiff was cited twice for violating the Fulton County Soil

Erosion and Sedimentation Control Ordinance of2005.¹⁷ Subsequently, the county notified the builder it intended to bar the builder from receiving land disturbance permits for a three-year period pursuant to local law.¹⁸ In a letter to the plaintiff, the county stated that it intended to enforce section 26-40(b)(8) of the Fulton County Code.¹⁹ Section 26-40(b)(8) provides that "[i]f a permit [applicant] has had two or more violations of previous permits, this article, or the Erosion and Sedimentation Act, as amended, within three years prior to the date of filing of the application under consideration, Fulton County shall deny the permit application."²⁰ The letter continued by stating the county would deny the land disturbance permit applications for a period of three years from the date of the builder's permit violation of April 28, 2006, due to the builder's multiple violations of previous permits; and all applications prior to that date were also denied.²¹

Shortly after receiving the debarment notice, the builder filed a complaint against the county, seeking damages under 42 U.S.C. Sec. 1983²² and Georgia law²³ for violation of equal protection rights.²⁴ The builder also sought attorney fees pursuant to 42 U.S.C. Sec. 1988²⁵ and section 13-6-11 of the Official Code of Georgia Annotated (O.C.G.-A.),²⁶ as well as a declaratory judgment that the ordinance violated due process.²⁷ Subsequently, the county withdrew its debarment notice, and the superior court denied the declaratory judgment petition as moot and entered judgment on a jury verdict for the builder on the Sec. 1983 claim. Both parties appealed.²⁸

The county argued that no developer has a vested property interest in receiving a land disturbance permit and, therefore, that the trial court erred in denying its motion for directed verdict on the builder's equal protection claim.²⁹ Rejecting this claim, the court of appeals stated that the county's argument was based on the faulty premise that identification of a property interest was required for an equal protection claim.³⁰ The Fourteenth Amendment³¹ itself demonstrates that interests in property and liberty are irrelevant to such claims.³² The court stated that "'to properly plead an equal protection claim, a plaintiff need only allege that . . . through state action, similarly situated persons have been treated disparately.'"³³

The court also vacated the trial court's ruling that the builder's petition for declaratory judgment was moot.³⁴ The court stated that the ordinance remained on the books despite the county's withdrawal of the debarment notice.³⁵ The county thus was required to deny future applications so long as the builder had two or more violations within three years preceding any future applications.³⁶ The court stated that although "a petition seeking a declaration that a particular debarment notice was void would presumably be rendered moot by the withdrawal of the notice, [the builder] did not seek a declaration that the . . . debarment notice was void."³⁷ The builder instead sought a declaration that the ordinance itself was unconstitutional.³⁸

D. The ZPL Requirement of Publication Fifteen Days, But Not More Than Forty-five Days, Prior to a Hearing is Not Extended When the Forty-fifth Day Falls on a Weekend

In C & H Development, LLC v. Franklin County,³⁹ neighbors challenged the county's grant of a conditional use permit. Among other things, the neighbors argued that the notice of the public hearing on the neighbor's conditional use permit did not comply with the zoning procedures law. The notice was published forty-six days before the hearing date,⁴⁰ not forty-five days as required by O.C.G.A. Sec. 36-66-4(a).⁴¹ In response, the county argued that the forty-fifth day fell on a Sunday, and therefore, under Georgia law, the time limit would be extended to the following Monday.⁴² The trial court granted the county's motion for summary judgment.⁴³

On review, the court of appeals reversed.⁴⁴ The county argued that if the forty-fifth day after publication fell on a Sunday, its Board of Commissioners could hold the public hearing the following Monday.⁴⁵ However, under O.C.G.A. Sec. 36-66-4(a), the county was required to publish notice of the hearing "[a]t least [fifteen] but not more than [forty-five] days prior to the date of the hearing."⁴⁶ The court held that the hearing date was the date from which the time limits of the notice had to be considered.⁴⁷ Because the hearing was not set for Sunday and was not held on that day, no pertinent date fell on a Sunday for purposes of O.C.G.A. Sec. 1-3-1(d)(3).⁴⁸

II. Condemnation

During the survey period, the Georgia appellate courts decided several condemnation cases dealing with procedural, evidentiary, and business loss issues. Some of the more interesting and instructive cases are discussed herein.

A. A Property Owner's Untimely Notices of Appeal Were Not Excused Based on the Doctrine of Equitable Estoppel

In Cedartown North Partnership, LLC v. Georgia Department of Transportation,⁴⁹ the Georgia Department of Transportation (GDOT) filed two condemnation petitions on August 11, 2006, to acquire two parcels of property owned by Cedartown North Partnership, LLC, as well as easements and access rights. Thirty-four days after Cedartown was served in the two cases, it filed notices of appeal challenging the amount of compensation deposited by the GDOT in the registry...