These related appeals concern the rights of certain sign companies to construct billboards in areas formerly located in unincorporated Fulton County that are now located in the recently created cities of Sandy Springs, Milton, and Johns Creek and a recently annexed portion of the city of Alpharetta (the “cities”).
Action Outdoor Advertising, jy LLC, Boardworks Outdoor Advertising Company, Inc., Granite State Outdoor Advertising, Inc., KH Outdoor Advertising, Inc., and Steven Galberaith and Larry Roberts (collectively the “sign companies”) are companies and owners and principals of companies which lease and construct billboards for displaying commercial and noncommercial messages. Between May 2003 and November 2006, the sign companies submitted complete applications to Fulton County for permits to construct billboards at different locations within unincorporated areas of the county. Fulton County denied the applications or refused to act on them as prohibited under provisions of the county sign ordinance. The sign companies subsequently sued Fulton County over the denial of their permits contending the sign ordinance was unconstitutional,
While the sign companies’ consolidated suits were pending, this Court determined in a separate appeal that the Fulton County sign ordinance was unconstitutional under the First Amendment to the United States Constitution.
Fulton County v. Galberaith,
1. Fulton County and the cities contend the trial court erred by granting summary judgment to the sign companies and
The trial court also correctly determined that the invalidity of the Fulton County sign ordinance resulted in there being no valid restriction on the construction of billboards in Fulton County and therefore, the sign companies obtained vested rights in the issuance of the permits they sought. “Vested rights,” which cannot be interfered with by retrospective laws, are “interests which it is proper for (the) state to recognize and protect and of which (the) individual cannot be deprived arbitrarily without injustice.”
Hayes v. Howell,
In so holding, we agree with the trial court that Fulton County and the cities failed to satisfy their burden of proving that overlay district regulations otherwise prohibited the sign companies from constructing the signs. See
Latimore v. City of Atlanta,
Similarly, we find no merit in the cities’ contention that the sign companies’ rights did not vest because they do not own or have signed leasehold interests in all of the properties on which the signs are to be located. The cities cite no authority for the proposition that only applicants with ownership or formal leasehold interests in the land may obtain vested rights, and this Court is aware of none.
1
Georgia law does make clear that when an applicant submits an application for a permit in accordance with applicable ordinances, the applicant is entitled to issuance of the permit.
WMM Properties
supra,
Contrary to the cities’ argument, the sign companies’ vested rights are not voided by application of OCGA § 36-60-26, which prohibits the issuance by a county of backdated sign permits for an area no longer within its jurisdiction due to formation of a new city or annexation. This statute was not enacted until May 2008, well after the time the sign companies filed their applications, and it cannot retroactively be applied to divest the companies of their vested rights. See
Hayes,
supra,
Finally, like the trial court, we reject the cities’ argument that
the subsequent creation of new cities within unincorporated Fulton County and the annexation of property into the city of Alpharetta divested the sign companies of their vested rights. Article I, Section I, Paragraph X of the Georgia Constitution “forbids passage of retroactive laws which injuriously affect the vested rights of citizens.”
Recycle & Recover,
supra,
2. The cities also contend on several grounds that the trial court erred by directing
(a) We find no merit in the cities’ argument that the trial court’s order violates their constitutional authority to plan and zone within their jurisdictions. As a general rule, cities possess by virtue of our constitution the right to control planning and zoning within their jurisdictions. Ga. Const., Art. IX, Sec. II, Par. IV. However, where, as here, an applicant’s rights vest before the creation of the new entity with regulatory authority, the newly created entity cannot retroactively impose its regulations to deprive the applicant of his rights to use the property in the manner authorized by law at the time the application was filed. To hold otherwise would virtually eliminate a party’s vested rights by placing such rights in jeopardy whenever there is a change in regulatory jurisdiction due to the creation of a new county or city or upon annexation or de-annexation of property.
(b) The trial court determined the sign companies held vested rights to construct the billboards as authorized at the time their applications were filed. Thus, while the cities cannot legally apply their newly enacted sign ordinances to the construction of these signs because such ordinances did not exist at the time the applications were filed, other valid restrictions, such as size, setback, and safety regulations could be applicable, as long as such restrictions or regulations were valid and applicable to the signs on the date the sign companies’ rights vested. 2 The court did not err by recognizing that the construction of billboards would be affected by other legally valid regulations.
(c) The cities also argue the remedy fashioned by the trial court constitutes mandamus relief which is inappropriate in this case both because the sign companies have adequate legal remedies and because Fulton County no longer has permitting and zoning authority over the applications. We disagree. The trial court simply granted summary judgment in favor of the sign companies based on its finding that there were no valid ordinances regulating the construction of billboards at the time the applications were filed and the sign companies were entitled to “construct, maintain and operate all signs for which they submitted applications and have brought this action.” Despite the cities’ contrary arguments, the order does not compel Fulton County or the cities to issue a permit as no permit was required at the time the applications were filed. Under these circumstances, the remedy fashioned by the trial court simply does not constitute mandamus relief. See generally OCGA § 9-6-20 (mandamus available to compel performance of official where defect exists because of failure to perform or improper performance and no other legal remedy exists). Compare
Tilley Properties v. Bartow County,
Judgments affirmed.
Notes
Verticality, Inc. v. Warnell,
The trial court specifically identified one such regulation in its final order, requiring that the signs meet or exceed all structural safety and soundness requirements of OCGA § 8-2-20 (9) (B), the 2006 International Building Code, with Georgia amendments. See also OCGA § 32-6-70 et seq., the Georgia Outdoor Advertising Control Act.