GA Appeals Court Upholds Board’s Decision Denying Conditional Use Permit for Poultry House, and Finds no Discrimination

This post was authored by Bradley Billing, Touro University, Jacob D. Fuchsberg Law Center

Sherran Lynn Wasserman agreed to sell her property to a buyer of Vietnamese descent, contingent upon the Board of Commissioners for Franklin County’s (the “Board”) approval of a conditional use permit (“CUP”) which would allow the buyer to construct a poultry house on the land. The CUP was originally approved by the Franklin County Planning Commission (“Commission”). However, the county’s council members then sent a letter to the Commission and the Board, requesting the permit be denied due to its proximity to a school and recreation center. The Commission reviewed the permit again and recommended it be denied based on zoning regulation criteria and due to possible adverse effects on the neighboring lands. Furthermore, they stated it should be denied because it also lacked certain required documents. The Board held a public hearing to discuss pending CUP applications, with those opposing the Wasserman property permit present along with Wasserman’s counsel, who was permitted to present a supporting argument. Ultimately, the Board chose to deny the Wasserman CUP application.

Wasserman filed a claim against the Board asserting a violation of equal protection rights, both as a suspect class and a class of one, because the Boards’s denial of the application was racially based as the buyer was Vietnamese. The Board moved for summary judgment, and the trial court denied the motion. The Board appealed, arguing that the trial court erred by “(1) denying its motion as to Wasserman’s equal protection claim based on racial discrimination because Wasserman lacked standing to assert the claim on behalf of the buyer; (2) denying its motion as to Wasserman’s equal protection “class of one” claim because she failed to establish a prima facie case to make this claim; and (3) relying on hearsay and other inadmissible evidence.” The court denied the motion stating that disputed facts existed as to Wasserman’s standing, as well as to whether the buyer’s application was similarly situated to other applications. The trial court certified its order for appellate review and this appeal followed.

For summary judgment to be properly granted, the movant must show that there exists no issue of material fact and that the facts viewed in the most favorable light to the nonmovant, demand judgment as a matter of law. Furthermore, on appeal from a denial or grant of summary judgment, the appellate court must review evidence to determine whether such a dispute of material fact exists, and it must be viewed in the light most favorable to the nonmovant.

            The Court addressed the first claim and agreed with the Board. Wasserman alleges that the Board rejected the CUP application because of the buyer’s race and that she incurred an injury as a result because the sale was contingent upon approval of this application. However, Wasserman lacks standing to bring a third-party racial discrimination claim on behalf of the buyer because she has not shown a close relationship with the buyer to represent his interests. Furthermore, they only communicated through a realtor. Thus, Wasserman only knew the buyer as a potential purchaser. Additionally, Wasserman admitted she had no involvement in the application and did not even realize the sale was contingent on the application’s approval. Moreover, Wasserman has not shown that the buyer was not able to bring the equal protection claim on his own. As a result of the foregoing, Wasserman lacks standing, and the trial court erred in denying the Board’s motion as to this issue.

            Next, the Court addressed the second claim. Wasserman alleges that she has been treated differently from others similarly situated for arbitrary or irrational reasons. Her claim fails in that she has presented no evidence to show that the Board treated her CUP application any differently from other applicants. Rather, evidence shows that of the four other permits to build poultry houses, three of the applicants were also persons of Vietnamese or Asian descent, and two of the three were granted. Furthermore, Wasserman has presented no evidence that any of the applications were identical to the buyer’s. Instead, the buyer’s CUP application proposed more poultry houses than any of the others and they were in proximity to both a school and recreation center, posing health and welfare concerns for community members.

            Finally, there was evidence from which the Board based its decision to deny the application. The Board received concerns from community members that the poultry houses would generate noise, odor, water contamination, and rat infestation. The Commission ultimately denied the application based on these possible adverse effects on the neighboring lands and zoning regulations. Thus, as a matter of law, the Board had a rational basis for denying the application and the trial court erred in denying the Board’s summary judgment motion on this ground as well.

            Based on the arguments stated, the trial court’s denial of the Board’s summary judgment motion is reversed, and the case is remanded with instructions for the trial court to enter summary judgment in the BOC’s favor.

Franklin County v Wasserman, 888 S.E. 2d 219 (GA App. 5/22/2023)