300 Ga. 609
Ga.2017Background
- In 1989 Southern States applied to the Georgia EPD to develop a landfill on property in unincorporated Bartow County and sought a county certificate of zoning compliance required for the permit process.
- In 1991 this Court invalidated Bartow County’s zoning ordinance (Tilley Properties). Bartow County adopted a new ordinance in September 1993 containing Section 6.1.4, which barred previously acquired vested nonconforming-use rights unless the nonconforming use actually commenced within one year of the ordinance.
- Southern States sued the county; in September 1994 the Bartow County Superior Court recognized Southern States’ vested right to obtain necessary county approvals based on its 1989 application; the order was not appealed and county officials issued certification letters over the ensuing years.
- Southern States eventually received an EPD solid-waste permit in 2013. Riverwood Farm Property Owners Association sued, arguing the landfill violated county zoning; the trial court granted partial summary judgment for Riverwood Farm and the Court of Appeals held Section 6.1.4 applied and had lapsed Southern States’ vested right, remanding to consider an as-applied constitutional challenge.
- On remand the trial court again ruled against Southern States; the Georgia Supreme Court reviewed de novo and held Section 6.1.4, as applied to Southern States, was retrospective and unconstitutionally impaired vested rights because the one-year commencement requirement effectively extinguished a vested right acquired before the ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 6.1.4 of the 1993 ordinance may be applied to divest Southern States of a vested right acquired in 1989 | Section 6.1.4 is retrospective and unconstitutionally impairs vested rights; it cannot divest a preexisting vested right | County contends the ordinance lawfully limits nonconforming uses and Section 6.1.4 validly conditions continuation on timely commencement | Court held Section 6.1.4, as applied, is retrospective and unconstitutionally impairs Southern States’ vested right |
| Whether the one‑year commencement requirement is a permissible minimal condition on vested rights | The one‑year rule is not a minimal condition because it eliminates the vested right regardless of intent, expenditure, or feasibility | County argues timing requirement is a valid regulatory condition on nonconforming uses | Court held the one‑year requirement was more than a minimal condition and functioned to extinguish the vested right |
| Whether later actions (certificates, delays, 20 years of certifications) cure or defeat the vested‑rights claim | Southern States relied on prior court recognition and county certifications as evidence its vested right persisted | Riverwood Farm and county pointed to non‑use and actions after ordinance to justify lapse under 6.1.4 | Court held those subsequent certifications and delays were irrelevant to the as‑applied retroactivity analysis; the ordinance still impermissibly impaired preexisting rights |
| Whether the case should be remanded for further proceedings (e.g., 2004 permit application waiver issue) | Southern States argued the as‑applied challenge was dispositive; other factual disputes exist (e.g., whether the 2004 EPD application waived rights) | County wanted final resolution that rights had lapsed under the ordinance | Court reversed and remanded for proceedings consistent with ruling; trial court must address other issues like the 2004 application on remand |
Key Cases Cited
- Tilley Properties, Inc. v. Bartow County, 261 Ga. 153 (Court’s prior invalidation of Bartow County zoning ordinance)
- Recycle & Recover, Inc. v. Georgia Bd. of Natural Resources, 266 Ga. 253 (retroactive laws affecting vested rights invalid)
- Hayes v. Howell, 251 Ga. 580 (distinguishing minimal conditions on vested rights)
- DeKalb County v. State of Ga., 270 Ga. 776 (definition of retrospective operation and vested‑rights protection)
- Michiels v. Fulton County, 261 Ga. 395 (zoning is an exercise of police power; protections for vested rights)
- Southern States-Bartow County, Inc. v. Riverwood Farm Property Owners Assn., Inc., 331 Ga. App. 878 (Court of Appeals decision applying Section 6.1.4 and remanding constitutional question)
- Cowart v. Widener, 287 Ga. 622 (standard of de novo review for summary judgment)
- Hertz v. Bennett, 294 Ga. 62 (definition of as‑applied challenge)
- RCG Properties, LLC v. City of Atlanta Bd. of Zoning Adjustment, 260 Ga. App. 355 (characterizing zoning power as legislative)