Braley held a leasehold interest in a property in Forest Park, Georgia, where he operated a retail salvage store. He has displayed merchandise for sale in front of the store in an area where there is a sidewalk and parking spaces since 1984. In March 2007, the City of Forest Park (the City) implemented a new ordinance regulating the display of goods and merchandise for sale outside stores, for the purpose of prohibiting the obstruction of public sidewalks and parking areas by the display of goods and merchandise. In April 2007, the City informed Braley that he was in violation of the ordinance and subject to criminal prosecution. Braley then filed a petition for declaratory judgment and equitable relief, seeking, among other things, that the ordinance be declared unconstitutional on a variety of grounds, and that the City be temporarily and permanently restrained from enforcing it. Both parties moved for summary judgment, and in March 2009, the trial court entered an order granting summary judgment to the City.
Braley now asserts that (1) the definition of “public sidewalk” in the City Code renders the ordinance overbroad and vague, thus violating Due Process rights guaranteed by the Fifth and Fourteenth Amendments of the U.S. Constitution, and the Georgia Constitution, (2) the trial court erred in granting summary judgment to the City on Braley’s claim that the ordinance effected a regulatory taking of property, (3) the ordinance was passed without complying with the Zoning Procedures Law, (4) he has been displaying merchandise outside of his business since 1984, and that this qualifies his use of the property as a nonconforming use under the City’s zoning ordinance, and (5) the definition of “public sidewalk” found in the City Code is unconstitutional as it conflicts with state law.
In response, the Court found that (1) the ordinance is sufficiently definite so that a person of ordinary intelligence need not guess at its meaning, and that Appellant fails to identify any constitutionally protected conduct which is substantially reached by the ordinance, and thus fails to demonstrate trial court error, (2) Appellant has failed to show that the ordinance does not substantially advance legitimate state interests or that it denies an owner economically viable use of his land, either of which is required to establish an unlawful taking by regulation, (3) contrary to Appellant’s contention claim, the passage of the ordinance was not a “zoning decision”, and the ordinance was not a “zoning ordinance”. That the ordinance regulates business and includes a distance restriction in its regulation of merchandise display does not render it a “zoning ordinance.”, (4) the ordinance at issue is not a zoning ordinance and that it does not come under the definition of a “non-conforming use” in the City’s zoning ordinance, and (5) the state constitution provides the rule that general laws preempt local or special laws, but excepts from this rule local laws permitted by, and not conflicting with, the general law.
Braley v. City of Forest Park, 2010 WL 1005028 (GA. 3/22/2010).
The opinion can be accessed here.
