Posted by: Patricia Salkin | March 26, 2017

GA Supreme Court Holds County Zoning Ordinance that Required Exercise of Any Vested Rights for Non-Conforming Uses Within One Year of Ordinance Adoption was Unconstitutional As Applied

In 1991, the court declared a Bartow County zoning ordinance invalid because the ordinance had not been enacted in compliance with Georgia’s Zoning Procedures Law. It was not until 1993 that Bartow County enacted a new zoning ordinance, which included a provision addressing vested rights for nonconforming use that were acquired during the absence of a valid zoning ordinance. In 1994, the Bartow County Superior Court ruled in favor of Southern States, finding that in the absence of a valid zoning ordinance in existence at the time of its application to the EPD, Southern States acquired a vested right “in all the necessary certificates to be issued by Bartow County to get approval from the necessary agency to operate a landfill.” Bartow County then issued a certificate of zoning compliance, and, over the course of the following 20 years, the county zoning administrator continued to issue certification letters confirming Southern States’ vested right to use the property as a landfill. In 2013, the EPD issued a solid-waste handling permit to Southern States, allowing the land to be developed into a landfill.

In May 2013, Appellee Riverwood Farm Property Owners Association, Inc., a group of private property owners in Bartow County, filed a complaint for declaratory judgment and injunctive relief alleging that the approved landfill violated Bartow County zoning ordinances. The trial court granted partial summary judgment in favor of Riverwood Farm, and Southern States appealed. The Court of Appeals concluded that, under the plain language of Section 6.1.4, any vested right had lapsed after Southern States failed to commence the non-conforming use of its property within one year of the adoption of the zoning ordinance. On remand, the trial court granted partial summary judgment in favor of Riverwood Farm.

On appeal, the court found that the one-year requirement imposed by Section 6.1.4 was not a mere minimal condition on Southern States’ vested rights which was permitted under Georgia law. Here, the evidence before the trial court established that commencing use of the Bartow County property as a landfill within the full year was unfeasible. As such, Section 6.1.4, as-applied, was retrospective and injuriously impaired Southern States’ vested right to develop its land free from county use restriction; thus, the provision could not merely be read and applied prospectively. The court therefore declared this Section unconstitutional as applied to Southern States. Accordingly, the judgment of the trial court was reversed, and the case was remanded.

Southern States-Bartow County, Inc. v. Riverwood Farm Homewoners Association, 2017 WL 765890 (GA 2/27/2017)

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