Fulton County v. ACTION OUTDOOR ADVERTISING, JV, LLC.
289 Ga. 347
| Ga. | 2011Background
- Sign companies sought Fulton County permits for billboards in unincorporated areas now within new cities Sandy Springs, Milton, Johns Creek, and annexed Alpharetta area.
- Fulton County denied or deferred permits under the county sign ordinance.
- Galberaith held the Fulton County sign ordinance unconstitutional under the First Amendment.
- After Galberaith, trial court granted summary judgment in favor sign companies, finding vested rights upon filing applications.
- Cities formed/reorganized jurisdiction; Fulton County argued it no longer had authority to issue permits and that vesting should be reconsidered.
- Record showed conflicting and incomplete overlay district regulations, raising questions about their effect on billboard approvals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sign companies have vested rights to erect billboards despite invalidation of the ordinance. | Sign companies obtained vested rights when applications were filed. | Without a valid ordinance in Fulton County, vesting could be affected by later changes. | Yes, vested rights attached upon proper applications; void ordinance could not defeat them. |
| Whether vesting survives creation of new cities and annexations. | Vested rights should survive jurisdictional changes. | New jurisdictions could retroactively alter rights. | Vested rights survive; cannot be retroactively divested by new entities. |
| Whether overlay district provisions prohibited billboard construction or created barriers to vesting. | Overlay regulations barred billboards in some districts. | Ambiguities in overlays could impede the grant of permits. | Overlays did not clearly prohibit billboards; no valid restrictions at filing time. |
| Whether the remedy was mandamus and proper given lack of current permits. | Mandamus appropriate to compel construction under vested rights. | Remedy not mandamus since permits not needed; other remedies exist. | Remedy properly awarded as summary judgment recognizing vested rights; not mandamus. |
| Whether backdated permits or OCGA 36-60-26 affected vested rights. | Backdated permits statutes cannot retroactively affect vested rights. | Statute could retroactively remove rights once applicable. | OCGA 36-60-26 cannot retroactively divest vested rights; not applicable. |
Key Cases Cited
- Fulton County v. Galberaith, 282 Ga. 314 (2007) (held Fulton ordinance unconstitutional under First Amendment)
- Granite State Outdoor Advertising v. City of Roswell, 283 Ga. 417 (2008) (supports that entire ordinance can be struck for content-based restriction)
- Hayes v. Howell, 251 Ga. 580 (1983) (vested rights definitional standards for non-retroactive protection)
- Recycle & Recover v. Ga. Bd. of Natural Resources, 266 Ga. 253 (1996) (vesting when law in existence at application time; retroactivity limits)
- WMM Properties v. Cobb County, 255 Ga. 436 (1986) (landowner/party vested right to building permit under law in effect at filing)
- Tilley Properties v. Bartow County, 261 Ga. 153 (1991) (vested rights survive changes in regulatory regime)
- Gifford-Hill & Co. v. Harrison, 229 Ga. 260 (1972) (third-party rights to require issuance of permit upon contract relation)
- Davidson Mineral Properties v. Monroe County, 257 Ga. 215 (1987) (leasehold/contractual relationships support vested rights)
- Latimore v. City of Atlanta, 289 Ga.App. 85 (2008) (ambiguities in ordinances construed against the government)
- Cherokee County v. Martin, 253 Ga.App. 395 (2002) (zoning ordinances ambiguities construed in favor of property use)