Posted by: Patricia Salkin | March 15, 2010

Lost Original Zoning Ordinance May Be Replaced with Copy Under State Lost Public Records Act

In 1985, the Newton County Board of Commissioners adopted a “new zoning ordinance” and in 1997 East Georgia Land and Development Company LLC (EGL) requested a letter verifying that its proposed landfill complied with the local zoning ordinance.  The County refused EGL’s request though holding the landfill was not a permitted use under the 1985 ordinance and as a result, EGL sought to compel the County to issue the letter.  During the mandamus proceedings, the 1985 ordinance was neither clearly identified in nor attached to the Board’s minutes, and the Court held that the County could not rely on parole evidence to prove the contents of the ordinance.

Following the county attorney’s request, the probate court judge filed a petition to establish a copy of the 1985 ordinance since the original had been lost. The superior court permitted EGL to intervene.   The court held the 1985 ordinance to be a public record as required by statute to establish a copy and ordered a copy be established holding that as a “correct duplicate was found in the zoning office in 1999 . . .  then attached to the minutes” and “currently maintained in the office of the Clerk of the Board of Commissioners.” The court in doing so rejected EGL’s claims that to order a copy “would violate the doctrine of separation of powers” and would thus “constitute a taking.”  EGL appealed the order establishing a copy of the ordinance.   

The court first considered EGL’s claim that the “superior court erred by holding that the Act allows superior courts to establish copies of ordinances . . . and by admitting parole evidence of the contents of [the] alleged legislation.”  EGL relying on the preamble of the Act which referred to allowing copies of “public records in any courts of the state,” argued that public records, includes “court records such as case filings and real estate records, but not ordinances.”  The court rejected this argument holding that the preamble could not control the meaning of the Act and thus the preamble could not limit the copying of the ordinance.  It further held that “[f]or many years, [it] ha[d] described ordinances and documents incorporated by reference therein as public records.” In addition the court recognized that the “need for . . . a remedy for the loss or destruction of an ordinance” has been recognized in the past by the court.   The court determined that as an “ordinance affects all citizens of a county, the need for a remedy . . . is no less important than when a particular case or real estate record is missing.”   

The court further held that parole evidence could be used to make a copy as it was not a proceeding to enforce a zoning ordinance, but instead to establish the copy of a lost record.  In addition as the court held circumstantial evidence could be used to establish a public record lost for many years, the “establishment of a lost record is necessar[y] by parole evidence.”   The court said that the superior court’s use of evidence “including the testimony of EGL’s forensic expert, . . .  several witnesses who were county officials in 1985 and their successors, . . . [and] subsequent amendments to the sections and subsections of the proffered copy” justified its determination to dismiss the involuntary dismissal and order the copy be made.  The Georgia Supreme Court based this determination following Georgia statutory law which required appellate courts to not disturb a trial court’s ruling on a “motion for involuntary dismissal” if there was any evidence to support the trial court’s determination.

EGL also argued that the Act’s application in the present case violated “the constitutional doctrine of separation of powers” as well as Georgia’s Zoning Procedures Law.    It argued as the “copy established by the superior court [was] not the exact ordinance adopted in 1985” the copy was thus “judicial enactment of legislation that w[ould] adversely affect property rights.”  The court disagreed, noting that there was a difference in making a copy of the ordinance and adopting or amending the ordinance. The court said that “a proceeding to establish a lost or destroyed ordinance is more akin to the interpretation of legislation which had already become effective. Thus the court held according to the “doctrine of separation of powers” the courts had the right of statutory construction, while the legislature was reserved the right to legislate.  The court further held it was not legislating as the ordinance was already law and the court had authority to “reestablish a previously adopted ordinance,” just like it had the power to construe the meaning of statutes.  Furthermore the court affirmed the trial court’s determination that “an establishment decree does not violate the doctrine of separation of powers, since its effect is not ‘the enactment’ of the ordinance or alteration of the ordinance as enacted by the Board [as it] . . . merely re-establishes the ordinances as always having been in effect.”   

The court also considered EGL’s claim that “the trial court’s final order retroactively establish[ed] a ‘substantial copy’ as a zoning law and therefore . . . amend[ed] the zoning ordinance without the published notice and public hearings required by the Zoning Procedures Law.”  The court repeated its determination that the “trial court’s decree did not have the effect of either adopting or amending any zoning ordinance” as the decree “did not constitute [any] ‘final legislative action by a local government.’”  As a result it was not a “’zoning decision’ to which the [Zoning Procedures Law] applie[d].” 

EGL also argued that the copying of the ordinance and the order resulting from it led to “an unconstitutional taking of its property rights without just compensation by establishing a zoning ordinance which did not exist in the public records of the County when EGL’s rights vested in 1997.”  The court again noted that the trial court had only “established a copy of an ordinance which ha[d] existed since 1985, prior to the vesting of the EGL’s property rights.”  As a result the copy only established what should have been in the original records, but was missing.   As a result the court affirmed the trial court’s determination that the establishment of the copy did “not constitute a taking.”   

East Ga. Land & Development Co., LLC v. Baker, 2010 WL 245551 (1/25/2010)

The opinion can be accessed at:

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