Georgia Outdoor Network v. Marion County

• Decision Date: 17 August 2009
• Docket Number: No. 4:08-CV-108 (CDL).,4:08-CV-108 (CDL).
• Citation: 652 F.Supp.2d 1355
• Parties: GEORGIA OUTDOOR NETWORK, INC., J. Steven Burch, Jere Smith, Steve Jackson, Douglas N. Bernhard, Raleigh Beatty, and Andrew Joe Stubbs, Plaintiffs, v. MARION COUNTY, GEORGIA, Defendant.
• Court: U.S. District Court — Middle District of Georgia

652 F.Supp.2d 1355

GEORGIA OUTDOOR NETWORK, INC., J. Steven Burch, Jere Smith, Steve Jackson, Douglas N. Bernhard, Raleigh Beatty, and Andrew Joe Stubbs, Plaintiffs, v. MARION COUNTY, GEORGIA, Defendant.

No. 4:08-CV-108 (CDL).

United States District Court, M.D. Georgia, Columbus Division.

August 17, 2009.

COPYRIGHT MATERIAL OMITTED

C. Wilson Dubose, Dubose & Associates LLC, Madison, GA, for Plaintiffs.

Ray L. Allison, Columbus, GA, for Defendant.

ORDER

CLAY D. LAND, District Judge.

In this action, Plaintiffs challenge the constitutionality of an ordinance enacted by Defendant Marion County, Georgia to regulate outdoor recreation camps (the "Ordinance"). Presently pending before the Court are cross-motions for summary judgment (Docs. 16 & 19). For the following reasons, the Court finds that the Ordinance passes muster under the United States Constitution. Accordingly, Defendant's motion for summary judgment is granted as to Plaintiffs' federal law claims. To the extent Plaintiffs bring claims based upon the Georgia Constitution and Georgia law, the Court declines to exercise supplemental jurisdiction and dismisses those claims without prejudice.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper only when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Whether a challenged statutory enactment is unconstitutional is a legal question that must be resolved by the Court. See, e.g., Wilson v. State Bar of Ga., 132 F.3d 1422, 1427 (11th Cir.1998). The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that judgment in its favor is proper as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FACTUAL BACKGROUND

The following facts are taken from Plaintiffs' Statement of Material Facts in Support of Their Motion for Summary Judgment Pursuant to Local Rule 56 and are undisputed, unless otherwise indicated.

As early as 2004, Defendant determined that it needed to impose zoning restrictions on "hunting camps" within its borders. An attempt to enact an ordinance embodying these restrictions met with strong public resistance and was soon abandoned. In 2006, Steve White, the Marion County building code and zoning administrator, began to receive complaints about a hunting camp on Mill Pond Road. Largely in response to these complaints, Defendant drafted another ordinance seeking to impose zoning restrictions on hunting and fishing camps (the "Hunting Camp Ordinance"). Plaintiff Steve Burch and other members of Plaintiff Georgia Outdoor Network ("GONetwork") expressed concern that the Hunting Camp Ordinance would be prejudicial to hunters and would serve no legitimate purpose, and they attempted to work with Defendant to improve the ordinance.¹ Ultimately, these attempts failed. After GONetwork informed Defendant it would file suit to enjoin the Hunting Camp Ordinance, Defendant voluntarily agreed not to enforce it. In the meantime, Dan Forster of the Georgia Department of Natural Resources suggested various revisions to the Hunting Camp Ordinance, particularly suggesting that the next version of the ordinance be geared towards regulating "outdoor recreation camps," or "ORCs" as opposed to strictly hunting and fishing camps. This revised Ordinance, found in Article XI, Sections 11.03(O) and 11.09 of the Zoning Ordinance of Marion County, Georgia (the "Zoning Ordinance"), is the ordinance at issue in this case.

The Ordinance imposes various conditions on outdoor recreation camps in Marion County. Among other things, the Ordinance requires that ORCs be located at least 100 feet from property lines, be screened from view, remain free from trash, and be accessible to Marion County zoning, tax assessing, and emergency personnel. In addition, the Ordinance requires each housing unit located in an ORC (the "ORC Units") to pay a $50.00 permit fee per year. An individual who violates, neglects, or refuses to comply with the Ordinance may be "punished by imposition of the appropriate fine of up to $500.00 and/or imprisonment, for a period of not more than 60 days, at the discretion of the Probate Court." (Ex. 10 to White Dep. 57, Nov. 19, 2008 [hereinafter Zoning Ordinance].) Each day a violation exists constitutes a separate offense. (Id.)

Although GONetwork alerted Defendant to what it believed to be various deficiencies in the Ordinance, Defendant did not incorporate GONetwork's suggestions into the Ordinance. On February 13, 2007, Defendant held a public hearing to discuss the Ordinance. Plaintiff Steve Burch attended the hearing on behalf of GONetwork and again voiced the organization's concerns regarding the Ordinance, and Plaintiff Jere Smith also voiced his opposition to the Ordinance. At the conclusion of the February 13th hearing, the Marion County Commission voted to adopt the Ordinance.

Having lost the political battle, Plaintiffs resorted to the courts for help. On July 24, 2008, Plaintiffs filed suit to enjoin enforcement of the Ordinance. To avoid a preliminary injunction hearing and maintain the status quo until the legality of the Ordinance could be ruled upon, Defendant agreed to voluntarily suspend its enforcement of the Ordinance temporarily.² The pending motions for summary judgment require the Court to determine whether the Ordinance is unconstitutional on its face due to vagueness, whether the Ordinance violates Plaintiffs' constitutional right to equal protection, and whether the Ordinance amounts to an unconstitutional taking of Plaintiffs' property. For the following reasons, the Court finds that the Ordinance violates none of Plaintiffs' federal constitutional rights.

DISCUSSION

I. Federal Due Process-Void for Vagueness Challenge

Plaintiffs first assert that the Ordinance "unlawfully violates Plaintiffs' civil rights in contravention of 42 U.S.C. § 1983" because it is unconstitutionally vague under the federal Constitution. (Compl. ¶¶ 29, 30.) Plaintiffs contend that because the Ordinance does not carefully define its terms, persons of ordinary intelligence cannot know whether they are in violation of the Ordinance; moreover, Plaintiffs contend that the Ordinance's lack of specificity is likely to encourage arbitrary and discriminatory enforcement of its provisions. (Id. ¶ 30.) Plaintiffs seek a declaratory judgment voiding the entire Ordinance as unconstitutionally vague on its face. (Id. ¶¶ 31, 43.)

"Vagueness arises when a statute is so unclear as to what conduct is applicable that persons `of common intelligence must necessarily guess at its meaning and differ as to its application.'" Wilson, 132 F.3d at 1429 (quoting United States v. Gilbert, 130 F.3d 1458, 1462 (11th Cir. 1997)). "The void-for-vagueness doctrine serves two central purposes: (1) to provide fair notice of prohibitions, so that individuals may steer clear of unlawful conduct; and (2) to prevent arbitrary and discriminatory enforcement of laws." Mason v. Fla. Bar, 208 F.3d 952, 959 (11th Cir.2000). Thus, "[t]o overcome a vagueness challenge, a statute must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited; and it must provide explicit standards for those who apply them to avoid arbitrary and discriminatory enforcement." Fla. Ass'n of Prof'l Lobbyists, Inc. v. Div. of Legislative Info. Servs. of the Fla. Office of Legislative Servs., 525 F.3d 1073, 1078 (11th Cir.2008) (per curiam) (internal quotation marks omitted). When, as in this case, criminal penalties may be imposed for a person's failure to comply with a zoning ordinance, the ordinance should be drawn with a greater degree of precision. See, e.g., Fla. Businessmen for Free Enter. v City of Hollywood, 673 F.2d 1213, 1218 (11th Cir.1982).

Plaintiffs in this case mount a facial vagueness attack on the Ordinance. A facial challenge to an ordinance or other legislation seeks to invalidate the legislation itself. Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir. 2001). The Eleventh Circuit has recognized "[s]ome disagreement . . . among members of the Supreme Court on exactly how high the threshold for facial invalidation should be set." Fla. League of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir.1996). Though this disagreement persists, see, e.g., City of Chicago v. Morales, 527 U.S. 41, 77-78, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Scalia, J., dissenting), all members of the U.S. Supreme Court appear to "agree that a facial challenge must fail where the statute has a `plainly legitimate sweep,'" Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40 & n. 7, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Stevens, J., concurring)).³

It also appears to be universally recognized that a "`facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully[.]'" Meggs, 87 F.3d at 459 (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). Indeed, "[f]acial challenges are disfavored" for at least three reasons. Wash. State Grange, 128 S.Ct. at 1191. First, facial challenges "often rest on speculation" and therefore "raise the risk of premature interpretation of statutes on the basis of factually barebones records." Id. (internal quotation marks omitted). Second, facial constitutional challenges "run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Id. (internal quotation marks omitted). Third, "facial...