GA Court of Appeals Found No Freehold and That There Was a Legitimate Moratorium

This post was written by Sebastian Perez, JD

The question before the Court of Appeals of Georgia (“Court”) is at what point a landlord has rights to the fixed property at which Plaintiff purchased the subject property (“Property”) to develop a 9,000-square-foot lot when the county zoning code (“Code”) allowed such densities at the time but later changed to require larger sizes. After the district where the Property is located, legalized, and extended the moratorium on processing land disturbance permits, the Plaintiff’s application to develop the Property was returned due to the moratorium. Plaintiff requested an administrative determination by the county planning department (“Department”), appealed to the zoning appeals board (“ZBA”), and then petitioned the Forsyth County Superior Court (“High Court”) upholding the ZBA Judgment against Claimant. The court granted Plaintiffs’ request for a discretionary appeal review.

On appeal, Plaintiffs claimed that the Court of Appeal erred in upholding ZBA’s administrative decision that he did not have the right to develop his property under a zoning code that permits his desired density. The plaintiffs argue that their rights were granted because (1) the purchase of the Property was made in reliance on a guarantee from the county that the Code permitted 9,000 square feet; (2) initiated the process to get some convenience under the original code; and (3) the district administration’s procedures for determining personal rights lacked verifiable standards or objective criteria for making such decisions. Meanwhile, Carson also initiated a mandamus petition against the county planning director and technicians in their department (“Individual Defendants”) in their individual and legal capacities in which he requested an injunction declaring the moratorium void and directing the Individual Defendants to proceed. permit application. After a partial ruling in favor of Individual Defendants, Carson changed his complaint to add a claim for declarative relief and damages and the court rejected Individual Defendants’ arguments for failure to bring administrative remedies; declared the moratorium valid and enforceable; require Individual Defendants to accept a permit application for processing; and allow Individual Defendants to consider a moratorium when processing applications.

In the first appeal case, the Court began their analysis by admitting that there are four different scenarios in which a landowner may obtain a personal right to commence certain uses of a property right despite changes in zoning laws which include when a landlord relies on (1) issuing a permit buildings and others, (2) laws that existed at the time the landowner properly applied for permits, (3) formal and informal approval of development plans, or (4) official guarantees that building permits would likely issue. The court noted that the fourth scenario was not applicable because a lower court found that no formal bail had been made and upheld the decision. Carson then argued that the second scenario was implemented because of the steps taken to obtain pre-approval for the sewer in reliance on existing laws at the time the permit application was filed but the Court found no support for that claim in court. recorded and decided he did not obtain personal rights in that way. The court then addressed Carson’s third argument and how the case law cited did not support the privacy rights finding due to procedural deficiencies in the zoning code because ZBA did not exercise discretion in its decisions and instead used its inherent power to interpret the Code. In the second case at appeal level, the Court concluded that the act was not prohibited by Carson’s alleged failure to institute an administrative remedy, that a lower court correctly found the moratorium lawful when the permit application was filed, that the moratorium prevented the county from accepting the permit application, and deemed Carson not entitled to a mandamus or damages.

Therefore, the Court upheld the decision of the lower court which rejected Carson’s claim for the mandamus which required the Individual Defendants to process the license application without considering the moratorium; however overturned the judgment granting Carson’s claim for the mandamus that required Individual Defendants to accept the application for processing, and also reversed the judgment granting Carson’s request for an injunction prohibiting Individual Defendants from refusing to process the application.

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

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