This case presents challenges to a municipal zoning ordinance. Because the property owners have abandoned their claim that the ordinance was unconstitutionally enacted and have not shown that it is unconstitutionally vague as applied to them or that it unconstitutionally interferes with their property rights, we affirm the superior court’s grant of summary judgment to the city
1. In 1973, Charles Edwards acquired 794 Oak Avenue in the City of Warner Robins (“the City”). This property was subdivided into three lots, each with a mobile home that he and his wife, Carol Edwards, rent out; they also have sometimes lived in one of the homes. In June 1997, the Edwardses (“Appellants”) bought properties adjoining 794 Oak Avenue: 790, 791, and 793 Oak Avenue, which together comprise seven acres with 36 lots. Each lot either had a mobile home on it or was being held out for use by a mobile home. Appellants allege that they purchased these properties for usе as a “manufactured home park.” At the time of the 1997 purchase, however, mobile homes were prohibited on the properties by the restrictions of the City’s Base Environs Overlay District (“BEOD”) ordinance, except where permitted as a legal nonconforming use.
The City Council added the BEOD to the City’s overall zoning ordinance on February 22, 1994, with the enactment of Ordinance 12-94. As explained in § 74.4 of the zoning ordinance, the BEOD is “an overlay district that applies additional standards and requirements to properties located within an underlying zoning district.” Section 74.4.1 explains that:
Proposed developments located within this zoning district shall comply with these requirements and the requirements of the underlying zoning district and any other overlay districts that apply to lands within this zone. In the case of conflicting standards and requirements, the more stringent standards and requirements shall apply
That section also lists the purposes of the BEOD:
To protect the public health, safety, аnd welfare by regulating development and land uses within noise-sensitive areas and accident potential zones;
To ensure compatibility between and surrounding land uses and Robins Air Force Base; and
To protect RAFB from encroachment by incompatible development.
Table 74.4-A was adopted as part of the BEOD ordinance, and it prohibited “manufactured housing” or “mobile homes” in the district.
Section 74.4.4.1 provides an exemption to the BEOD restrictions for existing uses:
Uses existing on the effective date of these regulations shall not be required to change in order to comply with the requirements specified herein. The nonconforming use requirements of these regulations shall apply to the future applicability of the standards and requirements contained herein.
The nonconforming use rules are laid out in §§ 61.5 and 61.6 of the City’s zoning ordinance.
It is undisputed that all of Appellants’ Oak Avenue properties are within the BEOD. The three mobile homes on the 794 Oak Avenue lots have been permitted since 1994 as nonconforming uses. In July 1997, Appellants asked the City for rezoning of their other Oak Avenue lots, and the City Council granted this request and rezoned the prоperties from R-3 to R-MH.
On June 18, 2008, the City allegedly published in The Telegraph newspaper, the City’s legal organ, notice of a July 8 hearing to be held by the City planning and zoning commission on a proposed amendment to the BEOD ordinance.
On February 17, 2009, the City’s director of development sent Appellants an e-mail explaining that even though the underlying R-MH zoning of Appellants’ properties allows mobile homes, the BEOD takes precedence and does not allow them. On August 16, 2011, Appellants submitted a formal request to the City’s building inspector asking to be allowed (1) tо upgrade the current mobile home on one lot in the 794 Oak Avenue property, explaining that a newer, more energy efficient unit would result in a better return on
On June 19, 2012, Appellants sought judicial review of this denial in the superior court.
On March 5, 2013, after discovery, Appellants moved for summary judgment. On June 28, 2013, the superior court denied that motion, explaining that the BEOD ordinance prohibits mobile homes on Appellants’ properties; that the 2008 BEOD ordinance “appears” to be validly enacted; that even if it was not, mobile homes are still prohibited under the 1994 BEOD ordinance; and that Appellants cannot expand their nonconforming use by removing a mobile home and replacing it with a new one or by placing new mobile homes on previously vacant lots. On October 3, 2013, the City moved for summary judgment. After obtaining new counsel, Appellants filed a response and an amended complaint. Appellants added a claim that the BEOD ordinance deprives them of their vested right to use their properties for mobile homes and amended the taking claim to allege that the BEOD ordinance has taken their properties without just compensation and to request money damages under 42 USC § 1983. After a hearing, the superior court granted the City’s motion for summary judgment on October 1, 2014. In its order, the court explained that most of the issues had been decided in the June 2013 order and found that notice of the 2008 BEOD amendment had been published as required.
Appellants sought to appeal that order, filing a notice of appeal to this Court. We concluded that the suрerior court had not distinctly ruled on the constitutional issues and so transferred the case to the Court of Appeals, which in August 2015 dismissed the direct appeal for failure to file an application for discretionary appeal. We then denied Appellants’ petition for certiorari. When the case returned to the superior court, Appellants moved for a ruling on the remaining issues in the case, namely their constitutional challеnges. On July 7, 2016, the court granted the City summary judgment, expressly ruling that the City’s zoning ordinance is not unconstitutional and that Appellants’ claims of deprivation of rights under 42 USC § 1983 and regulatory taking are without merit. This appeal followed.
2. Appellants argue that the City did not comply with the notice requirement imposed by the ZPL before enacting Ordinances 27-08 and 12-94. See OCGA § 36-66-4 (requiring that the local government provide for a hearing on a proposed zoning action and publish notice of the hearing in the local newspaper “[a]t least 15 but not more than 45 days prior to the date of the hearing”). As discussed in footnote 4 above, no competent evidence in the record currently on appeal shows that the City published notice as required by the ZPL before passing
Appellants label their notice argument as a constitutional one; this enumeration of error and the heading of the pertinent section of their brief say that the zoning ordinances were “unconstitutionally enacted.” The substance of the argument, however, focuses entirely on the alleged failure to meet the notice requirement of the ZPL, and Appellants make no argument and cite no authority that by failing to meet that statutory requirement, the City violated constitutional due process. Cf. Sikes v. Pierce,
3. Appellants argue that the term “mobile park or court” in the 2008 BEOD ordinance is unconstitutionally vague, and that it is unclear if the ordinance precludes them from placing additional mobile homes on their properties. As a matter of due process, a law is void if it is “so vague that persons of ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ ” Gouge v. City of Snellville,
Appellants argue that even if it is clear that a large group of related mobile homes would qualify as a “mobile home park or court,” the ordinance is unconstitutionally vague because it is not clear whether this language prohibits the placement of a single mobile home in the BEOD area. We need not decide whether the ordinance might be confusing for the owner of a single mobile home, however, because Appellants are not in that situation. “ ‘(E)ven if the outermost boundaries of the applicable section of the ordinance may be imprecise in certain situations . . . , one to whose conduct (an ordinance) clearly applies may not challenge it on the basis that it may be unconstitutionally vague when applied to others.’ ” Burton v. Glynn County,
4. Appellants contend that the BEOD ordinance unconstitutionally hampers the use of their properties by violating their vested rights to use the properties for mobile homes and by depriving the properties of value so
(a) Appellants’ mobile homes on the 794 Oak Avenue property have been allowed by the City as legal nonconforming uses because they were in place before the first BEOD ordinance was enacted in 1994. Appellants are not satisfied with this and contend that they should be allowed to expand their nonconforming use by replacing one of these mobile homes with an upgraded unit. However, as Appellants acknowledge in their complaint, §§ 61.5 and 61.6 of the City’s zoning ordinance prohibit expansion of nonconforming uses, including through the erection of new nonconforming structures. This restriction is not unreasonable, and “ ‘(a) governing authority can require a nonconforming use to be terminated in a reasonable time.’ ” BBC Land & Dev., Inc. v. Butts County,
As for Appellants’ request to put additional mobile homes on the 790, 791, and 793 Oak Avenue properties, Appellants acquired that land after the BEOD ordinance took effect. Ordinance 12-94 was enacted in February 1994, and Appellants purchased the properties more than three years later, in June 1997. The BEOD ordinance in place at that time clearly prohibited “manufactured housing” and “mobile homes” in the area. Thus, Appellants did not acquire a vested right to put mobile homes on these properties. Although Appellants allege generally that they have incurred expenses related to owning and developing their manufactured home park, they have not shown that they made “expenditures, in addition to paying the purchase price, in reliance on the existing zoning and assurances by zoning officials.” WMM Properties, Inc. v. Cobb County,
The fact that the City granted Appellants’ petition to rezone the properties to R-MH in July 1997 does not change this result. This Court has held that a property owner may acquire a vested right based on a government-issued building permit that violated the subsequently revised zoning ordinance when the owner “obtained approval for detailed development plans of all relevant [local government] departments ... and expended large sums of money to go ahead with development from that point.” WMM Properties,
(b) Finally, Appellants argue that the BEOD ordinance has effectively taken their properties without just compensation in violation of the Federal Constitution, see U. S. Const. amend. V, and that they are therefore entitled to damages. Appellants assert that because their properties are now zoned R-MH — as they requested — the only use permitted by this zoning designation is mobile homes. As discussed in footnotes 2 and 3 above, however, Appellants did not put in the record a certified copy of the relеvant zoning ordinance provisions, and they therefore have presented no competent evidence to support this assertion. See Whitfield v. City of Atlanta,
Judgment affirmed.
Notes
The City’s zoning ordinance uses “manufactured housing,” “manufactured home,” and “mobile home.” The parties use the terms interchangeably with regard to the homes Appellants have on and want to add to their properties.
The City’s full zoning ordinance is not in the record. A certified copy of Section 74 of the ordinance, which includes the BEOD ordinance, is in the record. Appellants included an uncertified copy of the pertinent provisions of §§ 61.5 and 61.6 as an attachment to their complaint. The full zoning ordinance can be accessed online through the City’s website, but this document does not appear to be certified as required for the trial court to take judicial notice of it under OCGA § 24-2-221. See id. (“When certified by a public officer, clerk, or keeper of county or municipal records in this state in a manner as specified for county records in Code Section 24-9-920 or in a manner as specified for municipal records in paragraph (1) or (2) of Code Section 24-9-902 and in the absence of contrary evidence, judicial notice may be taken of a certified copy of any ordinance or resolution included within a general codification required by paragraph (1) of subsection (b) of Code Section 36-80-19 as representing an ordinance or resolution duly approved by the governing authority and currently in force as presented. Any such certified copy shall be self-authenticating and shall be admissible as prima-facie proof of any such ordinance or resolution before any court or administrative body.”); former OCGA § 24-7-22 (same). See also Whitfield v. City of Atlanta,
Uncertified zoning ordinance excerpts in the record show that R-3 property is limited to residential uses. The uncertified City zoning ordinance not in the record but accessible online says R-MH means “manufactured home residential district.”
The only evidence of this notice in the reсord on appeal is an affidavit that is ostensibly from the classified/legal supervisor of The Telegraph, but that is signed by a different person “on behalf of ” her, makingthe affidavit invalid. See Sambor v. Kelley,
Appellants have represented that 12 out of 36 lots in their planned mobile home park on those properties are oсcupied by mobile homes. It appears that these 12 mobile homes have been permitted as nonconforming uses.
Appellants named as defendants the City as well as the City’s mayor, building official, and director of the department of development in their individual and official capacities. None of these individuals has filed anything separately from the City, so the defendant/appellees are referred to collectively as “the City.”
Appellants make essentially the same argument in different terms in their contention that the BEOD ordinance is “overbroad” because it has harmed their vested property rights.
Although it is not competent evidence for a court to consider, we note that the City’s zoning ordinance accessible online undermines Appellants’ claim, as it indicates that properties zoned R-MH have numerous permitted uses beyond mobile homes: single-family dwellings, accessory buildings to the main structure, home swimming pools, public utility structures and buildings, signs, modular homes, and service and auxiliary buildings to serve the residents of a manufactured home park. Additionally, the planning and zoning commission may grant a special exception to use R-MH land for churches and related accessory buildings; golf, swimming, tennis, or country clubs; community clubs or associations; athletic fields, parks, and recreation areas; home businesses; public and private schools and libraries; and group and personal care homes.