Posted by: Patricia Salkin | July 24, 2019

GA Appeals Court Finds a Change in Use to Constitute an “Alteration” With Respect to the County’s Zoning Ordinance

This post was authored by Matthew Loeser, Esq,

New Image, a towing and wrecker service, leased a facility located in Morrow, Georgia in Clayton County’s Heavy Industrial (“HI”) zoning district. In 2016, the Clayton County Planning and Zoning Administrator verified that towing and wrecking was a permitted use of the property, and New Image was able to pursue its application for a business license. During the application process, New Image met with the Technical Review Committee (“TRC”), which included the County Water Authority, the Transportation and Development Department, the Planning and Zoning Department, and the Fire Department. The TRC instructed New Image to submit a site plan to facilitate its review, but after New Image failed to do so its application for a business license was suspended. New Image appealed this decision to the BZA, which unanimously voted to uphold the Administrator’s decision and found that New Image must submit a site plan to show its compliance with sections 6.2 and 6.32 of the Zoning Ordinance. New Image filed a petition for writ of certiorari to the superior court, which reversed the BZA’s decision.

On appeal, the County contended that this matter did not involve construction of the Zoning Ordinance because the BZA made a factual finding that New Image’s license application was subject to sections 6.2 and 6.32, and, with regard to the requirement for the site plan, the Administrator was exercising her administrative discretion. As such, the County claimed the superior court was confined to consider “whether the agency acted beyond the discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or capriciously with regard to an individual’s constitutional rights,” rather than reviewing the decision de novo. The court found that rather than simply making a factual finding, the BZA analyzed the context of the Zoning Ordinance, specifically with respect to the meaning of “altered” in section 6.2. Accordingly, the superior court was required to construe the ordinance in determining whether the agency overreached its authority.

In reviewing the Ordinance, the court found that the term “altered” in section 6.2 included changes in land use unaccompanied by physical alterations to the site, as well as “land uses” and “land use changes” within the scope of Article 6. Here, the record reflected that New Image’s proposed use varied from that of the former lessee. Specifically, as testified to by the Planning and Zoning Division consultant at the BZA hearing, there was a significant difference in intensity of use between the former fencing company’s “laying wire” and New Image’s proposed use involving “laying down any number of vehicles.” Therefore, Article 6 was found to apply to New Image’s business application, regardless of whether the features of the property were physically altered. The court thus held that because New Image proposed a change in the use of the property, it was required to comply with sections 6.2 and 6.32.

Clayton County v. New Image MA-012 Towing and Recovery, Inc., 2019 WL 2754562 (GA App. 7/2/2019)

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