Posted by: Patricia Salkin | April 7, 2014

GA Appeals Court Finds that a Vested Right in a Legal Nonconforming Use Was Not Superseded by a Use That Takes Place Outside of the Express Terms Required for that Use

This case arose from an event hosted by Cavalia USA, Inc., which held its outdoor entertainment traveling horse show on the Noble parking lot. The parties stipulated that during the Cavalia show, “no portion of the subject properties was utilized as a surface park-for-hire lot.” On February 9, 2012, one month following the end of the Cavalia show, the City, through its Office of Buildings, notified Noble that its park-for-hire surface parking lot had been superseded by a permitted use pursuant to the Code of Ordinances of the City of Atlanta (“City Code”) §§ 16–24.005(4), 16–18P.007 (1)(d), and 16–18P.007 (2)(b). Noble responded by informing the City that its decision was “without a legal basis” and that Noble intended to resume its park-for-hire business in March 2012.

The City conceded that it did not issue Cavalia either a special use permit or a special administrative permit pursuant to City Code § 16–18P.007, however that Code section provides in plain, unambiguous language that “outdoor amusement enterprises” such as the Cavalia show are “permissible only by additional special permits”, which shall be processed by the Bureau of Planning.4 See City Code § 16–25.001. Because Cavalia’s use was a use that is only “permitted” or allowed by a special administrative permit pursuant to City Code § 16–18P.007 (2)(b),5 and no such permit was issued, Cavalia’s use could not act to supersede Noble’s nonconforming use pursuant to City Code § 16–24–005.

The court held that 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; therefore, they must be strictly construed and never extended beyond their plain and explicit terms.” Beugnot v. Coweta County Board of Zoning Appeals, 231 Ga.App. 715, 722 (1998). Because of this the court found that a vested right in a legal nonconforming use can be superseded by a use that takes place outside of the express terms required for that use.

Noble Parking v Centergy One Associates, 2014 WL 1097955 (Ga App. 3/21/2014)

The opinion can be accessed at:

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