Posted by: Patricia Salkin | March 12, 2021

GA Appeals Court Finds Court Below Erred in Reversing Zoning Board’s Decisions Regarding Stop Work Orders and Building Permit Denial

This post was authored by Matthew Loescher, Esq.

This case involved Petitioner’s Mommies Properties, LLC’s four appeals to the Forsyth County Zoning Board of Appeals: an appeal of a stop work order issued for failing to get a land disturbance permit for stockpiling dirt on its property; an appeal of a decision requiring an erosion control plan for grassing the property; an appeal of a second stop work order issued for failing to comply with the Metropolitan River Protection Act, OCGA § 12-5-440 et seq. (“MRPA”); and an appeal of a decision denying Petitioner a building permit to build a custodial residence on the property. The ZBA found against Petitioner and in favor of Forsyth County on all of the appeals. Petitioner then appealed to the superior court by way of petitions for writ of certiorari. The superior court reversed the ZBA’s decisions, and denied the County’s motions for reconsideration in each case. The County then filed four separate applications for discretionary appeal, which were granted.

On appeal, the County contended that the superior court failed to follow the deferential “any evidence” standard in finding that, based on testimony presented at the ZBA hearing, Petitioner intended to use the dirt for top soil and grass seed rather than for stockpiling; and in disregarding Pruitt’s testimony regarding the estimated distance of the dirt on the property from State Waters. The court found that in reversing the ZBA’s decision, the superior court improperly took on the roles of factfinder and judge of witness credibility by reweighing the evidence and concluding as a matter of fact that Petitioner intended to have topsoil delivered to the property in order to lay grass seed to his horse paddock. The record of the ZBA hearing reflected that Petitioner did not object to Pruitt’s testimony, or present any evidence to challenge Pruitt’s estimate that the piles of dirt were within 200 feet of the bank based on his first-hand observations at the property. Accordingly, the court held that the superior court erred in reversing the decision of the ZBA in Case No. A20A1810, which had upheld the imposition of the County’s first stop work order on the property.

The County next claimed that the superior court erred in failing to address the UDC’s requirement that submitted applications for land disturbance permits include an erosion plan. Here, following the imposition of the two stop work orders, the County informed Petitioner that it needed to submit an Erosion and Sedimentation and Pollution Control Plan in order to obtain a land disturbance permit for the property. There was evidence in the record to support the ZBA’s conclusion that the dirt was being stockpiled on the property, thereby requiring that Petitioner obtain a land disturbance permit. However, as the court never addressed the UDC’s requirement with respect to a land disturbance permit, the superior court erred in reversing the ZBA’s holding on this claim.

The County further contended that the superior court erred in concluding that the second stop work order was issued based on the electrical utility work on the property. Upon review of the record, the court found that the County did not issue the second stop work order due to the electrical utility trenching a ditch to bury a power line on the property. Instead, at the ZBA hearing, Brown – Director of the County’s Department of Planning and Community Development – testified that he requested the second stop work order because he received information from Briggs that truckloads of dirt were being brought onto the property without explanation for the use of the dirt and whether that use complied with the MRPA. Thus, the superior court erred in reversing the ZBA’s decision based on the court’s assessment that the second stop work order was issued due to electrical utility work.

The County lastly argued that the superior court erred by failing to address the UDC’s prohibition against issuing a building permit when a stop work order has been placed on a property. As there was evidence to support the ZBA’s finding that Petitioner was stockpiling dirt on the property within 200 feet of State Waters without a permit, however, the ZBA did not err in upholding the issuance of the two stop work orders. The court therefore held that the superior court erred in reversing the Board’s decisions in all four appeals

Forsyth County Georgia v Mommies Properties, LLC, 2021 WL 926616 (GA App. 3/11/2021)


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