Posted by: Patricia Salkin | June 17, 2009

Municipality May Not Apply Requirements of Zoning Overlay District to Property Not In Its Territorial Jurisdiction

Following an annexation by the Town of a 26-acre parcel owned by the appellants in 2004, the Town created an overlay zoning district requiring certain improvements along a state road that fronted the parcel. When the appellant sought a development permit and variance exempting the property from the required improvements for Phase I of their proposed development, the planning department recommended denial and the zoning board of appeals adopted the recommendation in 2005. Thereafter, the Town and the appellant entered into an escrow agreement over the necessary improvements, and the appellants reserved their right to challenge the overlay district. In August 2006, the appellants submitted an application permit for Phase II of the project. The Town rejected the application as incomplete and not in compliance with the overlay district requirements. In 2007, the appellants brought a suit against the Town for a declaratory judgment, mandamus, injunctive relief and for damages, and they subsequently alleged that the overlay zoning district was unconstitutional and invalid. The Trial Court found for the Town and awarded attorneys fees against the appellants based on a finding that the appellant’s counsel perpetrated a fraud on the Court by knowingly and willfully submitting a inaccurate and false survey in an effort to defraud the court, subvert justice, and gain an unfair advantage. The Georgia Supreme Court found that these constituted sufficient specification of the conduct that entitled the Town to attorney’s fees.

With respect to the overlay zoning district, the Court agreed that the Town does not have jurisdiction or authority to zone property outside its borders. Therefore, the Georgia Supreme Court concluded, “the Town was not authorized to restrict Appellant’s property rights within its territorial boundaries by means of requirements for the improvement of property located outside the Town’s corporate limits.” As a result, the requirements of the overlay zoning district applied to property outside the municipal boundary were invalid.

Century Center at Braselton, LLC v. Town of Braselton, 2009 1174466 (Ga. 5/4/2009).

The opinion can be accessed here:

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