Fulton County (hereinafter “the County”), appealed a trial court decision in favor of Action Outdoor Advertising JV, LLC, and other outdoor advertising companies (hereinafter “sign companies”). The sign companies sued after the County denied permits to construct billboards on unincorporated parts of the county, claiming that the sign ordinance was unconstitutional. The trial court declared the ordinance unconstitutional under the First Amendment in a separate proceeding (Fulton County v. Galberaith), finding that the sign companies had a vested right to erect their billboards. This court affirmed the trial courts’ grant of summary judgment in favor of the sign companies in both cases. Before this court rendered a decision in Galberaith, new cities formed, taking the County’s jurisdiction to regulate sign permits in those areas.
The County first argued that the trial court misinterpreted this court’s decision in Galberaith as invalidating the entire ordinance, when, they claim, it only invalidated certain provisions of the ordinance. The County also argued that the trial court erred in granting summary judgment for the sign companies. This court disagreed and noted that the “broad sweep” of the County’s ordinance presumed all signs to be illegal and subsequently permitted them on a case-by-case determination, in clear violation of the First Amendment of the United States Constitution. As a result the ordinance was void from its date of enactment and the trial court correctly held that this ordinance could not be used to deny the sign companies’ applications.
The Supreme Court also agreed with the trial court that the sign companies obtained vested rights in the issuance of the permits they sought, because the invalidity of the ordinance meant that no valid restrictions on sign construction existed at the time. The cities (formed during the Galberaith proceeding) unsuccessfully argued that 1) the sign companies’ rights did not vest because they do not own or have signed leases in the properties at issue, and alternatively, 2) that the subsequent creation of new cities within unincorporated parts of the County and the annexation of property into a city divested the sign companies of their rights. The court emphasized that the record clearly shows the sign companies’ ownership and leasehold interests in the properties. They also firmly stated that the creation of cities and annexation of land could not constitutionally and retroactively divest sign companies’ rights under the applications they filed with the County, indeed, the idea that vested rights do not survive the creation of a new entity contradicts the very principle underlying vested rights.
Lastly, the Court held that other valid regulations on the signs, for example, size, setback or safety regulations, are applicable as long as they were applicable on the date the sign companies’ rights vested. They disagreed with the cities’ argument that the trial courts’ granting summary judgment was effectively mandamus relief, inappropriate because of the sign companies’ other legal remedies and the County’s lack of authority over the applications. The Court stated that the order did not compel the County or the cities to issue a permit, because the invalid ordinance meant that no permit was even required to construct signs at the time the applications were filed.
Fulton County v. Action Outdoor Advertising, JV, LLC, 2011 WL 2305974 (Ga. 06/13/2011).
The opinion can be accessed at: http://www.gasupreme.us/sc-op/pdf/s11a0023.pdf
