Taylor Junkyard owns real property in Haralson County that contains an automobile junkyard in an area zoned for residential use. Prior to the current owner, the property had been a permitted nonconforming use. When Taylor Junkyard sought to purchase the property/business, it was issued a letter by the County Zoning Administrator, which stated that the business “falls under the grandfather clause…. This business may remain in place as long as it complies with section [50–5] of the Haralson County Zoning Ordinance.” Taylor Junkyard then purchased the property. When Taylor Junkyard applied for a business license, Haralson County rejected the application because the “business engaged in on the property had changed from the original nonconforming business of used automobiles and parts to metal recycling and metal fabrication, and thus violated the County’s zoning ordinance.” Taylor Junkyard appealed to the County Zoning Board of Appeals (“ZBA”), which rejected the appeal. Taylor Junkyard then filed the instant petition for a writ of mandamus in superior court, which the court granted, finding that there was no evidence to support the ZBA’s decision.”
The County contended that “the superior court erred in addressing the petition for writ of mandamus, arguing that the Haralson County, Georgia, Zoning Ordinance (“Zoning Ordinance”), provides a means for Taylor Junkyard to file an appeal from the adverse decision of the ZBA, and thus, mandamus was not an available remedy.” The Court held that “when local zoning ordinances do not establish a means by which an aggrieved party may gain judicial review of an adverse decision by a zoning appeal board, a petition to the appropriate superior court for a writ of mandamus is the proper remedy. Accordingly, as no provision of the Haralson County ordinances set forth an available means of judicial review, the superior court did not err in concluding that a petition for a writ of mandamus was the proper avenue for Taylor Junkyard to seek review of the ZBA’s decision.”
Next, the County contended that the superior court erred in granting the writ of mandamus. “Mandamus will issue against a public officer under two circumstances: (1) where there is a clear legal right to the relief sought, and (2) where there has been a gross abuse of discretion.” The Court noted, “the standard of review is whether there is any evidence supporting the decision of the local governing body, not whether there is any evidence supporting the decision of the superior court.” Furthermore “the construction of a zoning ordinance is a question of law for the courts. Zoning ordinances are to be strictly construed in favor of the property owner. Since statutes or ordinances which restrict an owner’s right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms. Any ambiguities in the language employed in zoning statutes should be resolved in favor of the free use of property.”
The evidence presented by the County to show that the prior owner’s operation of the business was not the same nonconforming use that existed in 1998 consists of a letter Daniels wrote to the Permit Office asking for direction on how he might have the property re-zoned. That letter was on a letterhead bearing the title “Greg’s Used Cars and Parts,” and in it, Daniels wrote, “I own and operate a used car and part business.” Thus, the County seems to assert, only the sale of cars and automobile parts were encompassed in Daniels’s business. However, “the nomenclature of a business does not necessarily indicate all activities engaged in by that business, nor can Daniels’s use of such an abbreviated term to refer to his business be considered to describe all aspects of the business; the purpose of the letter was not to catalog his business activities but to learn how he might proceed to have the property’s zoning changed from residential to a more appropriate classification.” Furthermore, the County presented no witness who knew personally what types of operations were going on in premises. Rather, the only evidence from those witnesses familiar with the business operated at the property during Daniels’s ownership indicated that the previous owner’s operation was the same as the previous owner. Thus, “the court correctly concluded that there was no evidence that the property had a different nonconforming use in 1998 than at the time of Taylor Junkyard’s application for a business license.”
Lastly, the Court addresses The ZBA determination that the nonconforming use had been discontinued. The evidence established that the business ceased to exist in 2006 but that the previous owner continued to use the corporate name for his business. Further, the only evidence regarding actual operations on the site was that they continued unchanged through that year. Accordingly, the superior court was correct in concluding that there was no evidence to support a finding of a ‘discontinuance’ of the business for at least one year.
Haralson County v. Taylor Junkyard of Bremen, Inc., 2012 WL 2512902 (Ga. 7/2/2012)
The opinion can be accessed at: http://caselaw.findlaw.com/ga-supreme-court/1605194.html