Zoning and Land Use Law - Dennis J. Webb, Jr., Marcia Mccrory Ernst, John Chadwick Torri, and Davene D. Walker

• Publication year: 2008

Zoning and Land Use Lawby Dennis J. Webb, Jr.^*

Marcia McCrory Ernst^**

John Chadwick Torri^*** and Davene D. Walker^****

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law that were handed down by Georgia appellate courts between June 1, 2007 and May 31, 2008. 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

During the survey period, the Georgia General Assembly legislatively overruled the most controversial zoning case of last year's period, and the Georgia appellate courts decided several novel cases, ranging from the expansion of nonconforming uses, to application of the state's Anti-SLAPP statute¹ in a zoning challenge, to holding a property owner liable for negligence per se for failing to comply with certain conditions of zoning approval.

A. BBC Land & Development, Inc. v. Butts County Legislatively Overruled

Last year's article included a discussion of BBC Land & Development, Inc. v. Butts County,² in which the Georgia Supreme Court held that a developer's vested rights to build in accordance with prior zoning requirements could not be transferred to the developer's immediate purchasers (notably builders, the principal purchasers of platted lots).³ In a piece of legislation principally concerned with protecting railroad right-of-way rights from adverse possession claims, the 2008 Session of the Georgia General Assembly enacted legislation that effectively "overruled" the decision in Butts County.⁴ In House Bill 1283,⁵ the General Assembly added a second sentence to the Official Code of Georgia Annotated (O.C.G.A.) Sec. 44-5-40, which now provides as follows:

Future interests or estates are descendible, devisable, and alienable in the same manner as estates in possession. 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.⁶

The appellate courts have not had occasion to address the legislative "fix" to Butts County, the statute having become effective only on May 14, 2008, after signature by the Governor.

B. Industrial Development Authority's Immunity from Zoning

In Effingham County Board of Commissioners v. Effingham County Industrial Development Authority,⁷ the Georgia Court of Appeals refused to address whether the Effingham County Industrial Development Authority (the Authority) was in fact immune from Effingham County's zoning regulations, holding that the Authority's petition for declaratory judgment below did not raise a justiciable controversy under the Declaratory Judgment Act.⁸ The Authority alleged that it owned approximately 4350 acres in Effingham County, none of which were "zoned for the uses intended by the Authority."⁹ The petition alleged that the Authority had applied to rezone one or more of its parcels but that it and the Effingham County Board of Commissioners (the Board) "were in doubt and in need of declaration of rights with regard to the Authority's immunity from, and the Board's right to enforce, the county zoning code."¹⁰ The trial court granted the Authority's petition.¹¹

The court of appeals considered significant that the Authority, at the trial court hearing, "did not introduce any evidence to show [it] planned to use the tracts or whether its use of the tracts would conflict with the current zoning."¹² Nor did the Authority present evidence as to the status of its pending zoning applications.¹³ "Thus, the facts before the trial court were as follows: the Authority owns property in Effingham County; the Authority contends it is immune from the Board's zoning regulations; and the Board disagrees."¹⁴ The court concluded that "the Authority failed to produce any evidence . . . showing that it faces uncertainty as to a future act"¹⁵ because the Authority "did not introduce any evidence reflecting how it [was] using or plan[ned] to use the property, and whether there [was] a conflict between its use or intended use and the Board's zoning regulations."¹⁶ On those grounds, the court held that the trial court lacked jurisdiction over the Authority's petition and remanded the case with direction to dismiss the Authority's petition without prejudice.¹⁷

C. Expansion of Nonconforming Use

In Henry v. Cherokee County,¹⁸ Henry owned a forty-three acre tract of land in Cherokee County he had purchased in the 1960s. Henry began operating an automobile salvage yard on a portion of his forty-three acres. In 1992 Cherokee County rezoned Henry's property to "light industrial," a classification that did not permit automobile salvage yards, rendering the salvage yard into a legal nonconforming use. In 1997 Henry sold fifteen acres of his property to Blankenship, leaving Henry with twenty-eight acres. On his fifteen acres, Blankenship installed and began operating a car shredder.¹⁹

Cherokee County filed a petition for injunction against both Henry and Blankenship, alleging that they had unlawfully expanded the noncon-forming use of the property. After a bench trial, the trial court found that Henry had violated the zoning ordinance by expanding his automobile salvage yard over his entire twenty-eight acre lot.²⁰

On appeal, Henry argued that the trial court erred in finding that he had expanded his lawful nonconforming use.²¹ The court of appeals turned to the provisions in the zoning ordinance governing nonconform-ing uses.²² Section 13.3 of the ordinance²³ provides for the continuance of a lawful nonconforming use of land as long as the nonconforming use is not "'[e]xtended to occupy a greater area of land.'"²⁴ The court held that, under the terms of section 13.3, Henry's entire twenty-eight acre lot could be used for the lawful nonconforming use of an automobile salvage yard, not simply that portion of it on which Henry operated the salvage yard at the time of its being rendered nonconforming.²⁵

D. Application of Anti-SLAPP Statute to Zoning Challenge

In Hagemann v. City ofMarietta,²⁶ Hagemann challenged the City of Marietta's (the City) rezoning of an adjacent tract for alleged procedural irregularities. After filing its Answer, the City sought leave to amend its pleading by asserting counterclaims against Hagemann. The City alleged that it had adopted a redevelopment plan that included a Tax Allocation District (TAD), that the rezoned property was located within the TAD, that Hagemann's suit jeopardized the success of the TAD and would delay the redevelopment project, and that Hagemann had publicly stated that the purpose of his suit was to obtain zoning concessions from the owner of the rezoned property, which made his suit an abuse of process.²⁷

Hagemann contended that the City's proposed counterclaims violated the Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute²⁸ because they sought to chill his right of free speech and his right to petition the government to right a wrong. Hagemann filed a motion to strike the proposed counterclaims on the grounds that (1) the claims fell under the anti-SLAPP statute; (2) the claims were not verified as required by the statute; (3) even if the claims were subsequently verified, the verification would be false; and (4) nothing in the City's proposed counterclaims demonstrated a cognizable cause of action. In response, the City filed affidavits of its mayor and attorney.²⁹

The trial court granted the City's motion to add the counterclaims and then denied Hagemann's motion to strike.³⁰ The court of appeals granted Hagemann's application for interlocutory review.³¹

On appeal, Hagemann argued that the trial court erred by not striking the City's counterclaims as violative of the anti-SLAPP statute.³² The anti-SLAPP statute requires that written verification under oath accompany any claim asserted against a person arising from an act "'which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances.'"³³ This verification must aver that the act forming the basis of the claim is not a privileged communication under O.C.G.A. Sec. 51-5-7(4)³⁴ and that the claim is not interposed for any improper purpose such as to suppress a person's right of free speech or right to petition government.³⁵ Under O.C.G.A. Sec. 51-5-7(4), a statement is privileged if it was "'made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances.'"³⁶ "A trial court may dismiss a claim that was falsely verified."³⁷ First, "'the court must make a threshold finding that the anti-SLAPP statute applies and that verification was re-quired.'"³⁸ Second, the court must determine that

(a) the claimant or his attorney did not reasonably believe that the claim was well grounded in fact and that it was warranted by existing

law or a good faith argument for the modification of existing law, (b) the claim was interposed for an improper purpose, or (c) the defendant's statements were privileged pursuant to OCGA Sec. 51-5-7(4).³⁹

The court of appeals held that Hagemann's declaratory judgment action challenging the rezoning decision fell within the scope of the anti-SLAPP statute, and because the City's counterclaims against Hagemann were filed in response to his declaratory judgment action, the City's counterclaims were required to be verified under the anti-SLAPP statute.⁴⁰ Although the City subsequently filed verifications, the court held that the verifications were false.⁴¹ The city attorney and mayor verified that "the counterclaims [were] warranted by existing law or a good faith argument for the...