The Effects Of Recent Court Cases And State Legislation For Planning In Georgia,2015

Brandon L. Bowen
Jenkins, Bowen and Walker, P.C.
15 South Public Square
Cartersville, Georgia 30120
(770) 387-1373
[email protected]

I. 2015 Legislation

1. Downtown Renaissance Fund Law; O.C.G.A. § 50-8-260 et seq.

This law effective July 1, 2015, allows the DCA to make funds available to municipal corporations for the redevelopment of their downtown districts.

2. Metropolitan Transportation Planning Process Law; O.C.G.A. § 50-8-280 et seq.

This law provides funding for jurisdictions in the Atlanta urbanized or air quality non-attainment areas to engage in comprehensive transportation funding. The regional commissions need to establish a policy board with representatives from all their jurisdictions within their portion of the metropolitan area.

II. 2014 - 2015 Cases

1. The case of the House of Dreams. Burton v. Glynn County, Ga. Supreme Ct., 2015.

Property owners on St. Simons developed the Villas de Suenos, a 6-bedroom beachfront home, and marketed it as a short-term vacation rental "perfect for weddings" and "St. Simon's premier wedding destination." The property was zoned R-6, which in St. Simons is a low to medium density single-family district in which event centers, hotels and facilities "for transient guests" are not permitted. Over the next three years, the property hosted an average of 25 events per year, some with more than 100 people in attendance. This generated numerous complaints, citations for noise violations, and ultimately a citation of the owner under state law for running a disorderly house.

In response, the owners sued the County, its commissioners and its chief of police trying to stop enforcement actions. The County responded seeking a declaratory judgment and injunction from the use of the property in violation of the zoning ordinance.

The Court found that while the ordinance would have permitted occasional use of the property for events, where the evidence showed that the hosting of events had become the primary purpose of the property, it was no longer a single-family residence and was not permitted in the zoning district.

Two important constitutional points:

Equal protection clause claim – the property owner could not prove selective enforcement of the ordinance against him because he did not present evidence of similar event facilities on St. Simons Island.

Due process vagueness claim – the property owner could not prevail on the claim that the ordinance did not have sufficient definitions because all it had to do was "be specific enough to give fair warning [to persons of common intelligence] of the prohibited conduct." An ordinance need not regulate with mathematical certainty to comport with due process. "One to whose conduct an ordinance clearly applies may not challenge it on the basis that it may be unconstitutionally vague when applied to others."

2. A sweet decision. Elbert County v. Sweet City Landfill, LLC, Ga. Supreme Ct., 2015.

Property owner wished to develop a landfill in Elbert County, which had a special use permit requirement. After several years of negotiations with the County that did not result in a final decision on the landfill special use permit, the developer filed suit. The Georgia Supreme Court held that most of the developer's claims failed because it had not exhausted its administrative remedies – it had never gotten a final decision. Therefore, its claims were not ripe for judicial review. One exception: developer's facial challenge under the dormant Commerce Clause.

3. The "you don't have to drink to have a Goodtime" cases. Oasis Goodtime Emporium I v. City of Doraville, Ga. Supreme Ct., 2015; Trop, Inc. v. City of Brookhaven, Ga. Supreme Ct., 2014.

Oasis presents a challenge to Doraville's adult entertainment ordinance. Justice Nahmias tells us: "Oasis Goodtime Emporium I, Inc., d/b/a Oasis, which describes itself as a 'restaurant featuring nude dance entertainment and alcohol service,' appeals to this Court to preserve those two pillars of its business – nudity and alcohol. Oasis asserts that when its employees dance nude and serve alcohol, they are clothed with constitutional free speech protection…" Doraville's adult entertainment ordinance prevented full nudity and alcohol sales at S.O.B.s.

How was Doraville seemingly able to circumvent Oasis' 1st Amendment-protected activities? Key to this is that rather than focusing on the content of Oasis' conduct, Doraville focused on the negative secondary effects of S.O.B.s, including prostitution and other crime, and Doraville had studies which supported these findings. Also, rather than regulating the conduct itself, Doraville regulated the time, place and manner of the conduct, particularly focusing on full-nudity versus semi-nudity and nudity in conjunction with alcohol sales. This triggered intermediate scrutiny, rather than strict scrutiny, which required it to show:

  1. It furthered an important governmental interest;
  2. It is unrelated to the suppression of speech; and
  3. Its incidental restriction of speech is no greater than essential to further important governmental interests.
    Doraville's ordinance was able to meet this test.

4. The "any evidence will do" case. Bulloch County Board of Commissioners v. Williams, Ga. Ct. of Appeals, 2015.

This case was an appeal from the denial of a conditional use permit to operate a personal care home. The planning commission gave a thorough written decision recommending approval, but the Board of Commissioners voted 3:2 to deny, apparently relying on opponents' testimony that the proposed personal care home was located on an unpaved "washboard" road and was in close proximity to a neighbor's unfenced pond – which may be a threat to patients non compos mentis.

The trial court struck down the denial, but the Court of Appeals affirmed, highlighting that appeals of special use permit hearings are record reviews (in this case the record was the minutes), and the trial court must look to see if any evidence supports the decision. In this case, the washboard road and unfenced pond fit the bill.

5. The "wait, wait, don't tell me…" case. Southern States-Bartow County, Inc. v Riverwood Farm Property Owners Association, Inc., Ga. Ct. of Appeals, 2015.

20 plus years ago, the Bartow County Superior Court reversed the County Commissioner's decision to deny a MSW landfill. But the landfill was never built. Time passed, the landfill company occasionally asked for letters of zoning consistency, which the County granted out of a belief that the Superior Court's order required the letters to be issued. Still no landfill. The County amended its zoning ordinance from time to time, and one of those provisions was a section that says vested rights that are not used within one year are deemed abandoned. Finally, the landfill company cranked up in earnest, but this time with the desire to open up a C&D landfill. The County continued to comply with the request, under the belief that the old Superior Court decision required it, but neighbors caught wind and filed suit. One of their claims was that whatever vested rights the landfill company had were long since lost because of the passage of time and the abandonment ordinance. They also argued that even if the landfill was permissible from a zoning perspective, it would be an anticipatory nuisance which the court should enjoin.

The Superior Court agreed that the landfill had abandoned its vested rights by virtue of the passage of time and also because the C&D landfill differed from the MSW landfill initially applied for. The Court of Appeals generally agreed, but reversed on the grounds that the Superior Court did not expressly answer the question of whether the ordinance providing for automatic abandonment of the vested rights is constitutional. And if it is unconstitutional, is a C&D landfill the same as a MSW for vested rights purposes. And if it is, would a C&D landfill be a nuisance to such an extent that it should be prevented? These questions remain unanswered…

6. The case of the ordinance that did not mean what it says its means. Golden Isles Outdoor, LLC v. Lamar Co., LLC, Ga. Ct. of Appeals, 2015.

Savannah adopted a sign ordinance that said there could be only three more digital billboards in the City, and they had to be located on a 4-lane arterial. This case was a fight between two billboard companies over the last of the three permits, which was issued for a Lamar sign on a collector street. The problem was, while the ordinance said the permits could only go to signs on a 4-lane arterial, it then had an apparently errant reference to a section that dealt with both arterial and collector streets. Therefore, Lamar argued and the trial court found that for the purposes of digital signs, arterial meant arterial and collector streets. The Court of Appeals was having nothing of it, dispensing with definitions that did not clearly identify the difference between arterial and collector streets and a street classification map that added nothing to clarity, the Court resorted to to find that arterial and collector streets were clearly separate types of streets, and the Lamar site was clearly not an arterial street, so therefore the sign was not permitted there, regardless of what the ordinance said.

7. "Do you know where your official zoning map was at 6:00 P.M. on the night of May 2?" Newton County v. East Georgia Land and Development Company, Ga. Supreme Ct., 2015.

This is a long running case that presents the problem of proving the official existence of zoning maps. The developer wished to develop a landfill which was not permitted in its district under the County's 1985 zoning ordinance, which was adopted in May of that year. The problem was that the official zoning map was not adopted until several weeks later.

The Court tells us that, in order to incorporate an official zoning map, you have to meet a 4-part test:

  1. The document must be sufficiently identified so that there is no uncertainty as to what was adopted.
  2. The document must be made a public record
  3. It must be accessible to members of the public who may be affected by it.
  4. The adopting resolution must give notice of this accessibility.

The problem here was that when the ordinance was first adopted, there was no zoning map. Later, when the map was adopted, the zoning ordinance was not readopted. The Supreme Court held that the 1985 ordinance was void when it was adopted (without a zoning map) and that it could not be revived.

8. The "you don't have standing to object to their lack of standing" case. Druid Hills Civic Association, Inc. v. Buckler, Ga. Ct. of Appeals, 2014.

This is the 4th appellate decision in a vicious dispute over whether or not property should be developed in an historic preservation district of Druid Hills. This appeal was from the planning commission's approval of a sketch plan. The trial court held that the civic association did not have standing to appeal the planning commission decision. Standing means that in order to challenge a zoning decision, the challenger must have a substantial interest which is aggrieved as a result of the decision. The Court of Appeals reversed because the developer had not challenged the civic association's lack of standing before the planning commission. This issue apparently turned on the fact that the appeal was a record review of an administrative decision, such that new issues could not be raised.