GA Appeals Court Finds No Vested Rights and that a Valid Moratorium Existed

This post was authored by Sebastian Perez, JD

The question before the Court of Appeals of Georgia (the “Court”) was at what point a landowner had vested rights in real property where Plaintiff purchased the subject property (the “Property”) to develop 9,000 square foot lots when the county’s zoning code (the “Code”) allowed for such density at the time but was later amended to require larger sizes. After the county, where the Property was located, passed, and extended a moratorium on processing land disturbance permits, the Plaintiff’s application to develop the Property was returned due to the moratorium. Plaintiff sought an administrative determination by the county’s planning department (the “Department”), appealed to the zoning board of appeals (the “ZBA”), and then petitioned the Superior Court of Forsyth County (the “Superior Court”) that affirmed the ZBA’s ruling against Petitioner. The Court Granted Plaintiff’s application for discretionary appellate review.

On appeal, the Plaintiff claimed the Superior Court erred in affirming the ZBA’s administrative decision that he had no vested right to develop his property under the zoning code that permitted his desired density. Plaintiff argued that his rights were vested because (1) the purchase of the Property was made in reliance on assurances from the county that the Code permitted 9,000 square foot lots; (2) initiated a process to obtain server easements under the original code; and (3) the county’s administrative procedure for determining vested rights lacks ascertainable standards or objective criteria for making that determination. Meanwhile, Carson also commenced a petition for mandamus against the county planning director and a technician in their department (the “Individual Defendants”) in their individual and official capacities where he sought an order declaring the moratorium void and directing the Individual Defendants to process his permit application. After a partial ruling in favor of the Individual Defendants, Carson amended his complaint to add claims for declaratory and injunctive relief and the trial court rejected the Individual Defendant’s argument for failure to exhaust administrative remedies; declared the moratorium valid and enforceable; required the Individual Defendants to accept the permit application for processing; and permitted the Individual Defendants to consider the moratorium when processing the application.

In the first case on appeal, the Court began their analysis by acknowledging that there were four different scenarios where a landowner could acquire a vested right to initiate a specific use of a property right despite a change in zoning laws which included when the landowner relied upon (1) issued building and other permits, (2) the law in existence at the time a landowner properly applied for a permit, (3) formally and informally approval of development plans, or (4) official assurances that a building permit would probably issue. The Court noted that the fourth scenario was not applicable because the lower court’s finding that no official assurances were made and confirmed that ruling. Carson then argued that the second scenario was applied because of the steps taken towards obtaining a preliminary approval for sewer easements as a form of reliance upon the law in existence at the time the permit application was filed but the Court found no support for such a claim in the record and determined he had not obtained vested rights in that manner. The Court then addressed Carson’s third argument and how the case law cited did not support a finding of vested rights due to procedural deficiencies in the zoning code because the ZBA had not exercised discretion in its decisions and instead used its inherent power to interpret the Code. In the second case on appeal, the Court concluded that the action was not barred by Carson’s alleged failure to exhaust administrative remedies, that the lower court properly found a valid moratorium existed when the permit application was filed, that the moratorium barred the county from accepting the permit application, and held Carson was not entitled to either a mandamus or injunctive relief.

Therefore, the Court affirmed the lower court’s ruling that denied Carson’s claim for a mandamus that required the Individual Defendants to process the permit application without consideration of the moratorium; but reversed the ruling which granted Carson’s claim for the mandamus that required the Individual Defendants to accept the application for processing, and also reversed the ruling that granted Carson’s request for an injunction that prohibited the Individual Defendants from refusing to process the application.

Carson v Brown, 883 SE2d 908 (GA App. 2/7/2023)

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