Banks County v. Chambers of Georgia, Inc., S94A0442

• Decision Date: 05 July 1994
• Docket Number: No. S94A0442,S94A0442
• Citation: 444 S.E.2d 783,264 Ga. 421
• Parties: BANKS COUNTY et al. v. CHAMBERS OF GEORGIA, INC. et al.
• Court: Georgia Supreme Court

Page 783

444 S.E.2d 783

264 Ga. 421

BANKS COUNTY et al. v. CHAMBERS OF GEORGIA, INC. et al.

No. S94A0442.

Supreme Court of Georgia.

July 5, 1994.

Reconsideration Denied July 21, 1994.

Frank W. Armstrong, Stewart, Melvin & House, Gainesville, for Banks County et al.

Dick Wilson, Jr., Peterson Dillard Young Self & Asselin, Atlanta, Joel L. Larkin, Garvis L. Sams, Jr., P.C., Marietta, Larry M. Dingle, J. Stuart Teague, Jr., Peterson Dillard Young Self & Asselin, Atlanta, for Chambers of Georgia, Inc. et al. THOMPSON, Justice.

This case presents a question of first impression: Does an applicant for a proposed solid waste landfill have a vested right to written verification of compliance with local zoning ordinances if he is in compliance with such ordinances when he first requests written verification? We answer this question affirmatively.

Banks County operated its own landfill until the mid-1980's. At that time, the County shut down its landfill and sought out persons interested in operating a private landfill in the County. R & B Wastes, Inc. ("R & B"), a corporation owned by Richard J. Daniel, Donald R. Daniel, and Angie A. Daniel, came forward. On April 23, 1987, R & B obtained a permit from the Georgia Department of Natural Resources ("DNR") to operate a landfill on approximately 20 acres of a 64 acre tract of land belonging to the Daniels.

Thereafter, R & B proposed expanding the landfill site, or selling an expanded landfill site to Chambers of Georgia, Inc. ("Chambers"). (Chambers has an option to purchase the 64 acre tract, as well as adjacent tracts owned by the Daniels.)

Applicants for solid waste permits must submit written verification from the County that the proposed site is in compliance with local land use laws. OCGA § 12-8-24(g); Ga.Comp.R. & Regs. r. 391-3-4-.05 (1993). Written verification of zoning compliance is one of the first hurdles a landowner must clear to obtain a sanitary landfill permit from the DNR.

On August 20, 1991, R & B, the Daniels and Chambers (hereinafter referred to collectively as "plaintiffs"), sought written verification that the proposed, expanded site complied with the County's zoning ordinances. It soon became apparent that the County was not going to give plaintiffs the written verification they sought. So, on September 26, 1991, plaintiffs filed a petition for mandamus and other relief, seeking, inter alia, an order compelling the County, members of the County Board of Commissioners, and the County's administrative zoning officer (hereinafter referred to collectively as "defendants"), to issue written verification of zoning ordinance compliance. Later that day, the County adopted a "Restated Zoning Ordinance."

Plaintiffs' mandamus action was presented for trial upon stipulated facts. On June 29, 1993, following a hearing, the superior court determined that the County failed to enact a valid land use ordinance prior to August 20, 1991, which would preclude written verification of compliance. The court concluded that plaintiffs were entitled to a written verification letter and it ordered defendants to issue such a letter. Significantly, the court made no finding as to whether the zoning ordinance enacted by the County on September 26, 1991, barred issuance of a written verification letter.

The County's administrative zoning officer issued a written verification letter, on July 9, 1993, to the Environmental Protection Division of the Georgia Department of Natural Resources. It reads: "In accordance with the order [in the superior court case], it is hereby certified that as of August 20, 1991, when the plaintiffs in said actions applied for a certificate of zoning compliance, the plaintiffs' intended use was not contradictory to any county zoning or other land use regulations or ordinances.... [N]o certification is made as to the effect of the current Banks County Zoning Ordinance which was enacted on September 26, 1991."

Plaintiffs were dissatisfied with the verification letter and moved to have defendants found in contempt. Alternatively, they sought an amendment to the court's June 29, 1993, order to require defendants to verify that the plaintiffs' proposed landfill is not in violation of current zoning ordinances.

The superior court ruled that plaintiffs acquired a "vested right" to a letter of compliance on the date they sought written verification from the County. Thus, the court determined that the September 26, 1991, zoning ordinance could not bar plaintiffs from obtaining written verification of zoning compliance. Again, the court commanded defendants to verify that plaintiffs' proposed, expanded landfill complied with the County's zoning ordinances.

The court directed the entry of judgment pursuant to OCGA § 9-11-54(b). Defendants appeal; we affirm.

1. In Gifford-Hill & Co. v. Harrison, 229 Ga. 260, 191 S.E.2d 85 (1972), this court considered whether a landowner had a right to the issuance of a building permit in accordance with a zoning ordinance which was in existence when the landowner first applied for the building permit. This court held that the landowner had such a right: "In this State when land is zoned for a particular use, and an applicant properly applies for authorization to use the land for that particular use, he is entitled to have such authorization issued; an applicant must thereafter comply with all reasonable conditions and requirements imposed upon the use of the land, and if he fails to do so the governing authority can withhold building permits and occupancy permits to enforce compliance with these regulations and conditions subsequent; but a governing authority cannot deny or postpone requested authorization to use the land for a permitted use and then defeat the applicant's right by thereafter rezoning the land." Id. at 265-266, 191 S.E.2d 85. Accord WMM Properties, Inc. v. Cobb County, 255 Ga. 436, 339 S.E.2d 252 (1986) (landowner has vested right to use property in accordance with zoning regulations in force when he applied for building permit).

Plaintiffs were in compliance with the County's zoning ordinances when they sought written verification of compliance on August 20, 1991. It follows that plaintiffs have a vested right to obtain written verification of zoning compliance despite the enactment of the September 26, 1991, zoning ordinance. WMM Properties, Inc. v. Cobb County, supra. See generally Southern States Landfill, Inc. v. Walton County, 259 Ga. 673, 674(1), 386 S.E.2d 358 (1989) (indicating that, but for factual dispute as to whether landowner applied for sanitary landfill permit, landowner would have vested right to issuance of permit).

We disagree with the dissenting opinion's suggestion that the cases in this area of the law are in conflict. In WMM Properties, Inc. v. Cobb County, supra, this court clarified the law: where a landowner is in compliance with zoning regulations, he is entitled to the issuance of a building permit at the time he applies for it; where a zoning ordinance is interpreted to preclude the issuance of a building permit, a landowner may nevertheless be entitled to the issuance of a building permit if he made a substantial change in his position in reliance upon assurances of zoning officials. Id. Thus, evidence of substantial expenditures plays no role where, as here, a landowner is in compliance with zoning regulations at the time he seeks written verification of zoning compliance. Compare Gifford-Hill & Co. v. Harrison, supra 229 Ga. at 265-266, 191 S.E.2d 85 (appellants entitled to permit to use property for crushed stone operation inasmuch as the use was permitted when appellants sought permit), with Barker v. County of Forsyth, 248 Ga. 73, 76, 281 S.E.2d 549 (1981) (evidence of substantial expenditures relevant where zoning officials renege on their assurance that appellants' proposed alpine slide is a permissible use under existing zoning ordinance).

2. Defendants contend that a 1983 sewerage ordinance prohibiting the disposal of "garbage" except at a county operated landfill stands in the way of written verification. We disagree. The ordinance was designed to regulate refuse in the county sewer system, not the placement of sanitary landfills; thus, it is not applicable. See Board of Commissioners of Henry Co. v. Welch, 253 Ga. 682, 683(1), 324 S.E.2d 178 (1985) (zoning ordinance must be construed strictly in favor of property owner).

Defendants themselves acknowledged that the ordinance was inapplicable when (following the entry of the trial court's June 29, 1993, order) they informed the Environmental Protection Division that as of August 20, 1991, plaintiffs' intended use was not prohibited by any previously enacted zoning ordinance. They cannot now take a position that is inconsistent with that acknowledgment. See Fulton County v. Threatt, 210 Ga.App. 266, 267(1), 435 S.E.2d 672 (1993).

Judgment affirmed.

All the Justices concur, except HUNT, C.J., and CARLEY, J., who concur in judgment only.

SEARS-COLLINS and HUNSTEIN, JJ., dissent.

HUNSTEIN, Justice, dissenting.

In March 1987, Banks County enacted an ordinance to allow R & B Wastes, Inc. to operate a 20-acre landfill on a 64-acre tract. Banks County had no zoning ordinance in effect at the time of this ordinance. In July 1990, the county enacted an interim zoning ordinance, to expire in December 1990, which provided that landfills were "conditional" uses and required rezoning and/or conditional use approval from the county for the expansion or extension of landfills. Before the expiration of the interim zoning ordinance, the county enacted an amendment to the R & B landfill ordinance authorizing R & B to expand its operation onto the entire 64-acre original tract and an adjacent 77-acre tract. Thereafter, in April 1991, the county enacted a comprehensive zoning ordinance, which contained the same provision as to the conditional use of landfills as did the interim zoning ordinance. Both the interim...